Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner)

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner)
Collection
Supreme Court Judgments
Date
1990-08-16
Report
[1990] 2 SCR 367
Case number
21230
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Northwest Territories
Subjects
Constitutional law
Notes
SCC Case Information: 21230
Decision Content
Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367
The Professional Institute of
the Public Service of Canada Appellant
v.
The Commissioner of the Northwest
Territories and the Northwest Territories
Public Service Association Respondents
and
The Attorney General of Canada and
the Attorney General for Ontario Interveners
indexed as: professional institute of the public service of canada v. northwest territories (commissioner)
File No.: 21230.
1990: February 20; 1990: August 16.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for the northwest territories
Constitutional law -- Charter of Rights -- Freedom of association ‑‑ Collective bargaining -- Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively -- Whether territorial legislation infringes freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of association justifiable under s. 1 of Charter -- Public Service Act, R.S.N.W.T. 1974, c. P-13, s. 42(1)(b).
The appellant Institute was the bargaining agent for a number of nurses employed by the federal government in the Northwest Territories until the nurses became employees of the territorial government. As a result of their change of employment the nurses ceased to belong to the bargaining unit on behalf of which the Institute had been certified to bargain collectively and became eligible for membership in the respondent Association, which had been incorporated to bargain collectively on behalf of all non-excluded territorial employees. The Institute sought incorporation as required by s. 42(1)(b) of the Public Service Act for the purposes of representing its former members. Under that section an employees' association must be incorporated by an Act if it is to bargain collectively on behalf of its members. The territorial government declined to enact the required legislation. The Institute applied to the territorial Supreme Court for a declaration that s. 42(1) of the Act was inconsistent with freedom of association guaranteed in s. 2 (d) of the Canadian Charter of Rights and Freedoms . The trial judge found that s. 42(1) violated s. 2 (d) of the Charter and was not a reasonable limit within the meaning of s. 1 . The Court of Appeal allowed the respondent Commissioner's appeal.
Held (Wilson, Gonthier and Cory JJ. dissenting): The appeal should be dismissed. Section 42(1)(b) of the Public Service Act does not infringe s. 2 (d) of the Charter .
Per Sopinka J.: The absence in s. 42(1)(b) of a set of objective conditions for the certification of a union is not a violation of freedom of association. While the statutory monopoly created by the section prevents a rival union from bargaining for its members, such legislative frustration of an association's objects is not a violation of s. 2 (d) if the restriction is not aimed at and does not affect the establishment or existence of the association -- unless the association's activity is another Charter -protected right or an activity that may lawfully be performed by an individual. The statutory monopoly has no effect on the existence of the Institute or the ability of any individual to be a member of it, and the activity of collective bargaining for working conditions is not constitutionally protected. Since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer. Given that a government has no common law obligation to bargain at all and can suspend a statutory obligation to bargain altogether, there can be no constitutional impediment to its choosing to bargain with a particular employees' representative.
Further, the requirement in s. 42(1)(b) that a union be incorporated for it to bargain collectively does not constitute a violation of s. 2 (d) of the Charter . The section does not prohibit the establishment of or membership in other unions, or prevent any such union from seeking incorporation under the Act. Nor does it require that an employees' association incorporated under the Act be constituted in a particular way or that it submit the scope of its objects, terms of membership or rules of internal governance to legislative control. The requirement of incorporation in s. 42(1)(b) is the means by which the territorial government has chosen to recognize the union or unions with which it will bargain collectively. A grant of collective bargaining rights must account for the associational rights of affected individuals, but this means nothing more than permitting rival associations to exist and vie for recognition.
Per L'Heureux-Dubé J.: Sopinka J.'s reasons and result were agreed with subject to brief comments. The impugned legislative provision in this case does not burden the appellant's freedom of association. The objects, purposes and activities of an association are irrelevant for Charter purposes. While one of the primary goals of employee associations is to attain the status of bargaining agent and to bargain collectively, the attaining of this status, its retention and the association's subsequent activity are not protected under s. 2 (d). Interpreting s. 2(d) as embracing any object of an association whose fulfillment is fundamental to the existence of the association has serious consequences which militate strongly against adopting such an approach, since the concept of freedom of association must be applied to a wide range of political, religious, social or economic associations with a wide variety of objects. Further, adopting the line of reasoning of the majority in the trilogy, which is determinative of the issue in the present case, does not leave unions powerless to achieve their objectives, since a broad range of union activity is still protected and since unions have access to the political process.
Per La Forest J.: Sopinka J.'s judgment was generally agreed with, but it is unnecessary to say anything about whether the right of association must include the freedom of persons to join together in pursuit of objects they could lawfully pursue as individuals.
Per Dickson C.J.: The constitutional guarantee of freedom of association in s. 2 (d) of the Charter does not include a guarantee of the right to bargain collectively, and the s. 2 (d) right adheres only to individuals. The determination of how bargaining agents are chosen is the first stage of the right to bargain collectively. Further, in the context of an inter-union struggle for the status of exclusive bargaining agent, the right claimed by the appellant must be characterized as a group right adhering to the trade union. The legislative choice of how bargaining agents are chosen is thus beyond constitutional scrutiny under s. 2 (d) of the Charter both because it is an element of the collective bargaining process and because of the individual nature of the s. 2 (d) right. Finally, since the Northwest Territories government was under no duty to enact a scheme of collective bargaining, the limitations placed upon a purely statutory entitlement do not attract the protection of s. 2 (d) of the Charter . If s. 2(d) does not guarantee the right to bargain collectively, it cannot guarantee a right to any particular bargaining agent.
Per Wilson, Gonthier and Cory JJ. (dissenting): By restricting the freedom of employees to form and to change their association, s. 42(1)(b) of the Public Service Act infringes an individual's right to associate protected by s. 2 (d) of the Charter . Section 42(1)(b) allows the government to totally monopolize the decision as to which associations are to be incorporated and thereby become "employees' associations". Only those associations which in the government's discretion have been incorporated can then participate in the collective bargaining process. There are neither bars to curb nor guidelines to direct the exercise of this absolute discretion. The section thus provides the means by which the government can, for all collective bargaining purposes, deny the very existence of an association selected by the employees to bargain on their behalf. Such untrammelled government discretion prima facie violates an individual's freedom of association. The fact that those who form the association may still meet together without interference from the state has no meaning if this association cannot be recognized under the relevant labour legislation. Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. The right of employees to join the association of their choice, and their right to change their collective bargaining association, are of fundamental importance, yet these rights are frustrated by s. 42(1)(b).
Section 42(1)(b) of the Public Service Act is not justifiable under s. 1 of the Charter . The objective of the Act is to provide the means of selecting a collective bargaining agent for the employees. While the necessity of having some structure to the process is of sufficient importance to warrant overriding a constitutionally protected right, the legislation is out of proportion to the objective sought and restricts the employees' freedom of association far more than is reasonably necessary. Unlike most of the collective bargaining statutes in the other Canadian jurisdictions, the legislation fails to achieve a reasonable balance between the rights of the individual, the union and the employer. It does not provide for any process by which the employees' choice of bargaining agent may be determined, and incorporation of the employees' association can only be attained by the exercise of an untrammelled government discretion when the government is itself an interested party to the ensuing collective bargaining. In order to create a structured collective bargaining process it is not necessary to give the government complete control over designation of the employees' bargaining agent. This denial of the employees' right to select their own bargaining agent in the manner contemplated in other jurisdictions cannot be justified as a reasonable limit under s. 1 of the Charter .
Cases Cited
By Sopinka J.
Considered: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; referred to: Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Jamieson v. Attorney-General of British Columbia (1971), 21 D.L.R. (3d) 313; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Morgentaler, [1988] 1 S.C.R. 30; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.
By L'Heureux-Dubé J.
Applied: 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; referred to: R. v. Skinner, [1990] 1 S.C.R. 1235.
By Dickson C.J.
Applied: 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.
By Cory J. (dissenting)
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; NSNU, Devco Local v. Canada Labour Relations Board (1989), 58 D.L.R. (4th) 225; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 28 , 29 , 31 , 38(1) , 39(1) .
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d), 15(1) .
Labour Code, R.S.B.C. 1979, c. 212, s. 43.
Labour Relations Act, 1977, S.N. 1977, c. 64, s. 37(2).
Labour Relations Act, R.S.M. 1987, c. L10, s. 40.
Labour Relations Act, R.S.O. 1980, c. 228, s. 7.
Labour Relations Code, S.A. 1988, c. L-1.2, s. 37.
Northwest Territories Public Service Association Act, R.S.N.W.T. 1974, c. N-2, s. 3.
Public Service Act, R.S.N.W.T. 1974, c. P-13, ss. 3, 5, 7, 15(1), 26, 32, 40, 42, 43.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35 .
Trade Union Act, R.S.S. 1978, c. T-17.
Authors Cited
Adams, George W. Canadian Labour Law: A Comprehensive Text. Aurora, Ont.: Canada Law Book, 1985.
Cavalluzzo, Paul J. J. "Freedom of Association -- Its Effect Upon Collective Bargaining and Trade Unions" (1988), 13:2 Queen's L.J. 267.
Jenks, C. Wilfred. Human Rights and International Labour Standards. London: Stevens & Sons, 1960.
Summers, Clyde W. "Freedom of Association and Compulsory Unionism in Sweden and the United States" (1964), 112 U. Pa. L. Rev. 647.
APPEAL from a judgment of the Northwest Territories Court of Appeal, [1988] N.W.T.R. 223, [1988] 5 W.W.R. 684, 53 D.L.R. (4th) 530, 41 C.R.R. 230, setting aside the judgment of Marshall J. (1987), 43 D.L.R. (4th) 472, declaring s. 42(1) of the Public Service Act (N.W.T.) unconstitutional. Appeal dismissed, Wilson, Gonthier and Cory JJ. dissenting.
Catherine H. MacLean and Dougald E. Brown, for the appellant.
Robert A. Kasting and Bernard W. Funston, for the respondent the Commissioner of the Northwest Territories.
Andrew J. Raven, for the respondent the Northwest Territories Public Service Association.
Graham R. Garton, for the intervener the Attorney General of Canada.
Robert E. Charney, for the intervener the Attorney General for Ontario.
//Dickson C.J.//
The following are the reasons delivered by
DICKSON C.J. -- I have had the benefit of reading the reasons for judgment of my colleagues Justice Sopinka and Justice Cory in this appeal. While I agree with the disposition reached by Sopinka J., I draw that conclusion solely on the basis of my interpretation of the reasons for judgment of the majority of this Court in what has come to be known as the labour law "trilogy": Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. The correctness of the majority judgments in this trilogy of cases was not challenged directly by the appellant before this Court.
In Reference Re Public Service Employee Relations Act (Alta.), supra, three members of a six member Court held, at p. 390, per Le Dain J., that:
. . . the constitutional guarantee of freedom of association in s. 2 (d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively . . . .
A fourth member, McIntyre J., explicitly found that the s. 2 (d) right adheres only to individuals (at p. 397):
The group or organization is simply a device adopted by individuals to achieve a fuller realization of individual rights and aspirations . . . . Freedom of association cannot therefore vest independent rights in the group.
In my view, the reasons for judgment of the majority in the three cases mentioned are dispositive of the issue raised in this appeal. The determination of how bargaining agents are chosen is the first stage of the right to bargain collectively. Furthermore, in the context of an inter-union struggle for the status of exclusive bargaining agent, I find it impossible to characterize the right claimed by the appellant as other than a group right adhering to the trade union. At the stage of incorporation by the legislature, the focus is no longer upon the associational rights of individuals. Rather, it shifts to the group itself, which seeks the support of individuals to establish itself as the exclusive bargaining agent. Thus, according to the decision of the majority in Reference Re Public Service Employee Relations Act (Alta.), supra, the legislative choice of how bargaining agents are chosen is beyond constitutional scrutiny in terms of s. 2 (d) of the Canadian Charter of Rights and Freedoms both because it is an element of the collective bargaining process and because of the individual nature of the s. 2 (d) right.
Reluctantly, I find that I am unable to agree with Cory J.'s assertion that once a legislature has chosen to establish a public sector collective bargaining scheme it may not place arbitrary restrictions upon the choice of association with which it will engage in collective bargaining. If, as Cory J. concedes, the government of the Northwest Territories was under no duty to enact a scheme of collective bargaining, then in my view it logically follows that limitations placed upon a purely statutory entitlement do not attract the protection of s. 2 (d) of the Charter . If s. 2(d) does not guarantee the right to bargain collectively, I fail to understand how it can guarantee a right to any particular bargaining agent. To find otherwise in effect would constitutionalize collective bargaining rights, a proposition which was rejected by a majority of this Court in Reference Re Public Service Employee Relations Act (Alta.).
For these reasons, and not without considerable hesitation having regard to the views which I expressed in the labour law trilogy of cases on the scope of s. 2 (d) of the Canadian Charter of Rights and Freedoms , I have concluded that, short of overruling the reasons of the majority of this Court in the trilogy, this appeal must be dismissed with costs to the respondents. I agree with Sopinka J. that the constitutional questions should be answered as follows:
1.Does s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, infringe the freedom of association guaranteed by s. 2 (d) of the Canadian Charter of Rights and Freedoms ?
Answer: No.
2.If the answer to question 1 is in the affirmative, can s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, be justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: The question need not be answered.
//Cory J.//
The reasons of Wilson, Gonthier and Cory JJ. were delivered by
CORY J. -- I have had the advantage of reading the reasons of my colleague Justice Sopinka. While I agree with his position regarding the issue of standing, I must respectfully disagree with his conclusion that s. 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, does not contravene s. 2 (d) of the Canadian Charter of Rights and Freedoms .
The Public Service Act
The Public Service Act is a comprehensive statute designed to regulate all aspects of employment in the public service of the Northwest Territories. It is relatively short with only 50 sections. Nonetheless, its provisions are broad in their scope. They encompass the organization of the public service, the classification of jobs, the making of appointments, and the terms and conditions of employment, including pay, suspensions, demotions, dismissals and holidays. The Act, by s. 42(2), also makes provision for the Commissioner (now described in the Act as the Minister) to enter into a collective agreement with an employees' association.
The most cursory review of the Act reveals one very significant feature. The Commissioner is specifically empowered to make a wide range of decisions. The Commissioner manages and directs the public service (s. 3); classifies the service and each position within it (s. 5); establishes the rates of pay (s. 7); has the exclusive right and authority to appoint persons to positions in the service (s. 15(1)); can dismiss or lay off employees (ss. 26 and 32); and can make regulations to carry the provisions and purposes of the Act into effect (s. 40). The Government, through the Commissioner, has thus retained the means of controlling the conditions of employment in the public service.
This control is reflected in the collective bargaining provisions of the Act. Section 42(1)(a) defines a collective agreement as being an agreement entered into between the Commissioner and an "employees' association". Section 42(1)(b) defines an employees' association as follows:
42. (1) In sections 42 to 46
. . .
(b)"employees' association" means an association of public service employees incorporated by an Act empowering it to bargain collectively.
Section 42(2) then states that the Commissioner "may" enter into a collective agreement with such an association.
The result of these provisions is that the government is able to control every aspect of the collective bargaining process. Not only does the Act give the government an unfettered discretion to choose which association will be incorporated as a collective bargaining agent under s. 42(1)(b), but it also makes the negotiation of a collective agreement a discretionary process on the part of the government. This Act is one of the few statutes governing labour relations extant in Canada which makes not only the choice of the employees' association but also a change of that association by the employees subject to the approval of the government, which is the employer. Whether that approval is to be given is within the absolute discretion of the government employer.
The legislative scheme seems to heavily favour the government to the extent of being one-sided, but this case is not concerned with the apparent unfairness of the legislation. Rather, the question is whether the Act infringes the right of freedom of association enshrined in s. 2 (d) of the Charter .
Section 2 (d)
Section 2 (d) of the Charter provides:
2. Everyone has the following fundamental freedoms:
. . .
(d) freedom of association.
The section must be considered in light of three decisions of this Court: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (the Alberta Reference); PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. A helpful summary of the positions taken in these cases was made by MacGuigan J. in NSNU, Devco Local v. Canada Labour Relations Board (1989), 58 D.L.R. (4th) 225 (F.C.A.), at p. 232, where he stated:
In those cases three of the six participating judges held that the guarantee of freedom of association in s. 2 (d) of the Charter does not include a guarantee either of the right to bargain collectively or of the right to strike, two judges held that it included both guarantees, and the sixth held that it did not include a guarantee of the right to strike (which was all that was necessary for decision in those cases) but left open the possibility that other aspects of collective bargaining may be Charter -protected.
Two of the cases in the trilogy, namely, the Alberta Reference and RWDSU, considered whether s. 2 (d) constitutionally protected the right to strike. McIntyre J. held in those cases that the right to strike was not protected under s. 2 (d). In the Alberta Reference, he also seemed to suggest that the right to bargain collectively was not included under the guarantee of freedom of association, although that issue was not specifically before the Court. In fact, Le Dain J. stated in his reasons in the Alberta Reference at p. 390:
I agree with McIntyre J. that the constitutional guarantee of freedom of association in s. 2 (d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal and answer the constitutional questions in the manner proposed by him.
However, in his reasons in PSAC, McIntyre J. indicated that he did not intend to go that far. In PSAC the constitutional validity of legislation which imposed a "6 and 5" percentage cap on wage increases for two years and denied the right to strike or to lockout during that time frame was questioned. McIntyre J. referred to his reasons in the Alberta Reference, and wrote at p. 453:
. . . I am of the opinion that s. 2 (d) of the Charter does not include a constitutional guarantee of a right to strike. My finding in that case does not, however, preclude the possibility that other aspects of collective bargaining may receive Charter protection under the guarantee of freedom of association. [Emphasis added.]
He went on to hold that the legislation in question did not infringe s. 2 (d) because, while it limited the bargaining power of the union, it still permitted negotiations between the employer and the union with regard to other terms and conditions of employment.
In PSAC, as in the other cases of the trilogy, Dickson C.J. and Wilson J. expressed the opinion that s. 2 (d) did constitutionally guarantee a right to collectively bargain. On the other hand, Le Dain J., with Beetz and La Forest JJ. concurring, found that s. 2 (d) did not include such a right. It can be seen that the Court appears to have been evenly divided on the question of whether s. 2 (d) could guarantee at least some aspects of the right to collectively bargain. It thus remains an open question as to whether all aspects of collective bargaining are precluded from s. 2 (d) protection.
However, it is not necessary for the disposition of this case to re-open that issue. Here, the legislation in question sets up a collective bargaining regime. It then precludes all employees, groups or associations except the group or groups incorporated by the exercise of an absolute government discretion from participating in that process. To my mind, this strikes at the very heart of freedom of association.
Nature of the Freedom of Association
Freedom of association is the freedom to join together for the purpose of achieving common goals. It is a right that is fundamental to a free and democratic society. Le Dain J. in the Alberta Reference wrote at p. 391:
. . . the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted.
The right of association is vitally important in our industrialized society. As C. Wilfred Jenks remarked in Human Rights and International Labour Standards (1960), at p. 49:
In an age of interdependence and large-scale organisation, in which the individual counts for so little unless he acts in co-operation with his fellows, freedom of association has become the cornerstone of civil liberties and social and economic rights alike.
Freedom of association, like freedom of expression and freedom of religion, is an individual right. It is not a right which adheres to a group, or to the purposes or objectives of that group. As Clyde W. Summers observed in "Freedom of Association and Compulsory Unionism in Sweden and the United States" (1964), 112 U. Pa. L. Rev. 647, at p. 647:
Although commonly asserted by the organization, freedom of association is not simply a collective right vested in the organization for its benefit. Freedom of association is an individual right vested in the individual to enable him to enlarge his personal freedom. Its function is not merely to grant power to groups, but to enrich the individual's participation in the democratic process by his acting through those groups. [Emphasis added.]
Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee's life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer. If collective bargaining is to function properly, employees must have confidence in their representative. That confidence will be lost if the individual employee is unable to choose the association.
Effect of the Northwest Territories Act on the Right of Association
At the outset it must be acknowledged that the Northwest Territories government was under no duty to enact a collective bargaining legislative scheme. Nor could an association of employees claim that it had a constitutional right to the enactment of such a scheme. However, once the Northwest Territories government undertook to enact such a legislative scheme, the legislation became subject to constitutional scrutiny. It follows that I cannot agree with the position taken by my colleague that if a government has no duty to bargain with anyone, then it also may, in the exercise of an absolute discretion, choose with whom it wishes to bargain. While this concept may hold true in a completely open economy, it cannot be applied in Canada where legislation has been enacted which governs and controls the collective bargaining process.
Section 42(1)(b) of the Act allows the government to totally monopolize the decision as to which associations are to be incorporated and thereby become "employees' associations". Only the government can incorporate an employees' association. Only those associations which in the discretion of the government have been incorporated can then participate in the collective bargaining process. The legislated governmental discretion to create these entities must of necessity also include a governmental discretion to refuse to incorporate an association. There are neither bars to curb nor guidelines to direct the exercise of this absolute discretion. The section provides the means by which the government can, for all collective bargaining purposes, deny the very existence of an association selected by the employees to bargain on their behalf. Such an untrammeled governmental discretion must prima facie violate an individual's freedom of association.
The right of the individual employee to join the association of his or her choice seems to me to be of fundamental importance. It not only enables the individual to better participate in the democratic process by acting through a group, but it permits the individuals to act in concert to seek fairness in wage settlements and working conditions. At the very least, the forming or changing of an entity to undertake collective bargaining is entitled to the protection of the Charter right of freedom of association.
The right of employees to change their collective bargaining association is just as important as the right to form it. It may be important to a group of employees to be represented by a national or international union. Such an entity may have access to expert advice on a wide variety of subjects ranging from the field of economics to the effects on health and safety of their work. At other times the reverse may be true and for valid reasons the employees may wish to be represented by a small and local entity. The needs of the employees are only known by them, and they should have the right to choose the association which can best represent their needs. Section 42(1)(b) of the Act denies them of that choice.
A simple example may help to illustrate the pernicious nature of the Public Service Act and to illustrate the problem faced by employees seeking to form an association. Let us imagine that s. 42(1)(b) applied to all employees' associations, not just those concerned with collective bargaining. Suppose individual employees formed an association, a team, to play hockey or baseball. The Government, through the Commissioner, could say that only those teams approved at the discretion of the Government are allowed to play baseball or hockey, or even to attempt to book ice time or to reserve a baseball field. The Government would still graciously permit the team members to meet whenever or wherever they liked, at which meetings they could discuss the weather or the standard of television programs. However, they could not play baseball or hockey. In those circumstances the right of the employees to associate for the lawful purpose of playing baseball or hockey would have been frustrated. How much more important is the right to form an association for the purpose of collective bargaining? Yet, the employees' right to select, to form, or to change the association which they wish to have bargain collectively on their behalf is frustrated in the case at bar by the provisions of s. 42(1)(b), and, as a result, their guaranteed Charter right to associate is infringed.
It follows that I cannot accept the statement of my colleague that "s. 42(1)(b) has no effect on the existence of the Institute" and that the union exists as long as the individuals can meet at a town hall and discuss their grievances. The hypothetical team in the example above did not exist because, while the members could meet, they could not play hockey or baseball. Similarly, a union can only exist if it is allowed to bargain collectively. That is the raison d'être of a union. In order to carry out its function of bargaining it must be recognized pursuant to the provisions of the relevant labour legislation. However, such an association or union does not "exist" under the Northwest Territories Act until it is incorporated as an "employees' association". The Act thus effectively prevents `unincorporated' associations from coming into existence and, by frustrating the employees' choice, thereby infringes the individual employees' right to associate. To say that the union exists as long as the individuals can meet and discuss their grievances is, with respect, to cast a spell of unreality over the situation. The voiced grievances would have no more effect than casual complaints about the weather.
That s. 42(1)(b) denies the employees their right to associate was also acknowledged by Kerans J.A. in the Court of Appeal below. He stated ([1988] N.W.T.R. 223, at p. 233):
On the other hand, the requirement that the proposed bargaining agent be incorporated by the council might bear on freedom of association. Moreover, the limit is acknowledged to be unnecessary and capricious and the result of legislative oversight, so that it could not be sustained on invocation of s. 1 [of the Charter ]. Therefore, the prospect of striking down looms unless the interpretive approach discussed at the outset can save it.
Kerans J.A. thus concluded that s. 42(1)(b) violated the employees' freedom of association. However, he held that the constitutionality of the section could be saved by reading in the words "or recognized" after the word "incorporated". In my view, it was not open to the Court of Appeal to add these words to change the natural meaning of incorporated and thereby alter the sense of s. 42(1)(b). Nor would the addition of those words save the constitutionality of the section. The sole purpose of incorporating an association is to obtain recognition under the Act. The constitutionality of the section thus hinges not upon recognition, but upon the denial of the right to choose the employees' association. Kerans J.A. was originally correct when he held that the Act violated s. 2 (d) of the Charter .
In summary, it is the very formation or changing of the employees' association which is restricted by s. 42(1)(b). To say that the association exists independently of its being incorporated under the legislation would be to denude the right granted by s. 2(d) of the Charter of any significance. The fact that the people who form the association (the union) may still meet together without interference from the state has no meaning if this association cannot be recognized under the relevant labour legislation. Section 42(1)(b) so restricts the freedom to form and change an association that it infringes the individual's right to associate protected by s. 2 (d) of the Charter . Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his or her group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. Arbitrary or totally discretionary restrictions placed upon the employees' right to choose their association must prima facie violate the freedom of association.
Section 1 of the Charter
It remains to be determined whether s. 42(1)(b) can be saved as justifiable legislation under s. 1 of the Charter . The general principles which govern a s. 1 analysis have been enunciated in a number of decisions of this Court, particularly in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Oakes, [1986] 1 S.C.R. 103. These cases dictate a two-step analysis. First, the court must assess the importance of the objective underlying the impugned legislation; and secondly, it must determine whether the means employed to achieve the purpose of the legislation are proportional to that objective.
Legislative Objective
Section 42(1)(b) allows for the recognition of a union as an "employees' association" under the Act. The section does this through the "incorporation" of an association. This is comparable to the certification of a union in other jurisdictions.
The certification procedure is the foundation of any collective bargaining regime. George Adams in Canadian Labour Law: A Comprehensive Text (1985) wrote, at p. 309:
The certification process is at the heart of our system of collective bargaining and has a fundamental impact on labour relations . . . [M]odern collective bargaining laws were enacted to eliminate recognition conflicts. While an employer might voluntarily recognize a trade union as the bargaining representative of a coherent group of employees or "bargaining unit", collective bargaining laws create a statutory procedure for the administrative determination of the appropriate bargaining unit and the authorized employee representative.
By specifying who the bargaining agent for certain employees shall be, the legislation provides a structure within which collective bargaining may take place. Collective bargaining would be well nigh impossible if a large number of separate associations were all vying to represent the same employees. To avoid such a situation the legislation dictates the method by which an association may win recognition under the statute by being "incorporated" or "certified" as a bargaining agent. After it has been duly recognized, the association can then enter into negotiations with the employer.
It is important to note that the exclusive bargaining agency aspects of the scheme are not the result of recognition under the Act. Rather they are the result of a separate section which grants such a right to the certified union or employees' association. The issue as to whether a right to exclusive bargaining status should have constitutional protection thus does not arise in this case. That is an entirely separate and independent aspect of the legislative scheme. The sole question in the case at bar is whether a certain association should even be allowed an opportunity to participate in collective bargaining under the legislative scheme.
The objective of the Act is thus to provide the means of selecting a collective bargaining agent for the employees. The result of the selection process will inevitably be that not every employee's chosen association will achieve bargaining agent status. However, the necessity of having some structure to the process is of vital importance, and certainly of sufficient importance to warrant overriding a constitutionally protected right.
Proportionalit