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Charter - s.2(d) Association (2). Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court reviews the history of Charter freedom of association [s.2(d)] case law, here in light of the union right to strike - and recent developments under the Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4):[3] In 2015, four years after the TTC Act was enacted, the Supreme Court of Canada released a landmark labour law decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, (“SFL”). In SFL, the Court reversed a series of its previous decisions and found for the first time that the right to strike is an integral aspect of the right of freedom of association enshrined in s. 2(d) of the Canadian Charter of Rights and Freedoms.
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[36] Ontario takes the position that the application judge asked the right question in the s. 2(d) analysis, but reached the wrong answer on the evidence before him. In broad terms, Ontario contends that because the TTC Act replaces the right to strike with compulsory binding interest arbitration, it necessarily protects the collective bargaining process sufficiently to avoid breaching s. 2(d) of the Charter.
[37] The respondents, conversely, agree with the application judge’s conclusion that the TTC Act violates s. 2(d) of the Charter, but submit that his case-specific and evidence-based analysis was more complicated than it needed to be. They argue that after the majority decision in SFL, legislation that entirely removes the right to strike after the expiry of a collective agreement, as the TTC Act does, will necessarily violate s. 2(d) of the Charter.
[38] For reasons I will now explain, I agree with the respondents on this legal point.
[39] It is well-established that in general, the question of whether legislation infringes the s. 2(d) Charter right to collective bargaining must be determined by conducting a two-part inquiry into whether the law interferes with activities that fall within the scope of the s. 2(d) right and, if so, whether the legislation “substantially interferes” with the right: see e.g., Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at paras. 17-37. This ordinarily requires a contextual and fact-specific inquiry: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 92 (“Health Services”). This was the approach the application judge took in his s. 2(d) analysis.
[40] However, as I read Abella J.’s majority reasons in SFL, she held that because of the importance of the right to strike to the collective bargaining process, any complete ban on unionized workers’ ability to strike after the expiry of a collective agreement will invariably “substantially interfere” with their s. 2(d)-protected collective bargaining rights. This does not require a case-specific inquiry into precisely how eliminating the right to strike has affected the collective bargaining process in the particular circumstances. Moreover, while the question of whether interest arbitration serves as a constitutionally adequate substitute for the right to strike may be an important factor in the s. 1 justification analysis, it has no bearing on the threshold question of whether eliminating the right to strike violates s. 2(d).
[41] It follows that the application judge’s detailed assessment of the evidence about how the TTC Act has affected collective bargaining between the TTC and its unionized employees was unnecessary at the s. 2(d) stage of his Charter analysis. However, the time he devoted to this was not wasted, because he would still have had to consider this evidence once he got to his s. 1 analysis.
(1) The evolution of the s. 2(d) Charter jurisprudence on the right to strike.
[42] In a 1987 trilogy of early Charter labour law decisions, a majority the Supreme Court of Canada held that the s. 2(d) Charter right to freedom of association did not protect either the right to collective bargaining or the right to strike: see Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC v. Canada, 1987 CanLII 89 (SCC), [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, 1987 CanLII 90 (SCC), [1987] 1 S.C.R. 460.
[43] Dickson C.J.C. and Wilson J. wrote separate reasons in this trilogy in which they disagreed with the majority on both of these issues.[6] As I will discuss, Dickson C.J.C.’s dissenting legal analysis is particularly important, because it has now been adopted by a majority of the Supreme Court of Canada.
[44] In his dissenting reasons in the Alberta Reference, which Wilson J. joined, Dickson C.J.C. explained that he would have interpreted s. 2(d) as protecting both the right of employees to collectively bargain and their right to strike in support of the collective bargaining process. As he explained at p. 371:I am satisfied, in sum, that whether or not freedom of association generally extends to protecting associational activity for the pursuit of exclusively pecuniary ends—a question on which I express no opinion—collective bargaining protects important employee interests which cannot be characterized as merely pecuniary in nature. Under our existing system of industrial relations, effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter. [Emphasis added.] [45] The three Alberta statutes at issue in the Alberta Reference were broadly similar to the TTC Act, in that they each prohibited strikes, and required at least some disputes to go to binding arbitration. Importantly, Dickson C.J.C. did not find it necessary to conduct any detailed case-specific analysis of how the prohibitions on striking in the three statutes had affected the collective bargaining process since their enactment. Instead, he merely stated at p. 372:These provisions directly abridge the freedom of employees to strike and thereby infringe the guarantee of freedom of association in s. 2(d) of the Charter. [46] In its 2007 decision in Health Services, the Supreme Court of Canada partially reversed the majority holdings in the 1987 labour trilogy, stating “that the holdings in the Alberta Reference and PIPSC excluding collective bargaining from the scope of s. 2(d) can no longer stand”, and that s. 2(d) of the Charter should now be understood as protecting “the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues”: at paras. 19, 36. However, citing the Court’s earlier decision in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, the majority in Health Services added, at para. 90:Section 2(d) of the Charter does not protect all aspects of the associational activity of collective bargaining. It protects only against “substantial interference” with associational activity ... . This is the origin of the “substantial interference” test that now governs s. 2(d) Charter claims involving the right to collective bargaining: see Société des casinos du Québec inc., at paras. 17-37.
[47] The final step of the Supreme Court of Canada’s retreat from the 1987 labour trilogy came with the Court’s 2015 decision in SFL, where the majority reversed the second major holding of the 1987 trilogy and held that s. 2(d) of the Charter should now be understood as also protecting the right to strike.
[48] In her majority reasons in SFL, Abella J. explained at paras. 2-3 that the right to strike is essential to the rights protected by s. 2(d):The question in this appeal is whether a prohibition on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningful process of collective bargaining and, as a result, violates s. 2(d) of the Charter. The question of whether other forms of collective work stoppage are protected by s. 2(d) of the Charter is not at issue here.
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction. [49] Abella J. also explained that she was following the path that had first been laid out by Dickson C.J.C. in his dissenting reasons in the Alberta Reference, noting at para. 75 of her reasons that:[The] historical, international, and jurisprudential landscape suggests compellingly to me that s. 2(d) has arrived at the destination sought by Dickson C.J. in the Alberta Reference, namely, the conclusion that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. In this case, the suppression of the right to strike amounts to a substantial interference with the right to a meaningful process of collective bargaining. [Emphasis added.] [50] As I read Abella J.’s reasons, she found that the ability to strike after the expiry of a collective agreement is so important to the collective bargaining process that eliminating it entirely will necessarily violate s. 2(d) of the Charter. While this still involves an application of the two-part Dunmore/Health Services “substantial interference” test, it does not require a case-specific inquiry into how the elimination of the right to strike in a particular case has actually affected collective bargaining. Since the right to strike is now recognized as an integral aspect of the s. 2(d) right to collectively bargain, any law that eliminates the right to strike entirely will “substantially interfere” with the affected workers’ s. 2(d) fundamental freedoms. . Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec
In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec (SCC, 2024) the Supreme Court of Canada allowed an employer appeal from a successful lower court s.2(d) ['freedom of association'] Charter challenge, here against a Quebec law that prohibited managers (here, casino managers) from unionizing.
Here the court contrasts the analytic framework for s.2(d) ['freedom of association'] as opposed to that for s.2(b) ['freedom of expression'] challenges:(2) Section 2(b) and Section 2(d) of the Charter Have Different Frameworks
[38] As noted above, the majority of this Court in Toronto (City), at para. 21, a case involving freedom of expression under s. 2(b) of the Charter, had declined to consider and left open whether the Dunmore approach to s. 2(d) “remains applicable” after this Court’s decisions in Fraser and Mounted Police. I have addressed why this Court’s s. 2(d) jurisprudence already confirms that Dunmore remains good law and how this Court built on Dunmore in Fraser and Mounted Police.
[39] It is also useful to highlight briefly the different evolution of the frameworks under ss. 2(b) and 2(d) of the Charter to explain why the distinction between positive freedoms and negative rights is not relevant in determining the framework for s. 2(d) claims, even though it has been recently affirmed in Toronto (City) in the context of s. 2(b).
[40] At issue in Toronto (City) was whether legislation that reduced the number of wards in an ongoing municipal election infringed the electoral candidates’ right to freedom of expression under s. 2(b) of the Charter. A majority of this Court affirmed the distinction between the tests for positive freedoms and negative rights claims in the context of s. 2(b), citing the Court’s earlier decision in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, which had also applied the three Dunmore factors under s. 2(b) (Baier, at para. 30). In Toronto (City), the majority refined the framework for positive freedoms claims involving freedom of expression, distilling the framework to the single question of whether the “claim [is] grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression” (para. 25).
[41] As a result, in the context of claims under s. 2(b) of the Charter, the threshold for proving positive freedom claims is substantial interference with freedom of expression (Toronto (City), at para. 25). However, the threshold for negative rights claims involving freedom of expression, as explained in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, is whether the purpose or effect of the government action merely restricts freedom of expression (Toronto (City), at para. 24, citing Irwin Toy, at p. 971, and Baier, at paras. 27-28 and 45).
[42] In the freedom of association context, by contrast, the threshold for both “positive” and “negative” freedom of association claims is the same: substantial interference (see Dunmore, at para. 25; Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25). There is not a more stringent threshold for positive rights claims under s. 2(d). For freedom of association claims, the “elevated threshold in the second Dunmore factor” (Toronto (City), at para. 25) of substantial interference already applies to all claims involving both positive and negative duties (Fudge, at pp. 545-46 and 550).
[43] Academic commentators have also noted that the standard of breach for a s. 2(d) claim “is strict, and bears little resemblance to the analogous tes[t] for expressive . . . freedom under section 2(b)” (J. Cameron and N. Des Rosiers, “The Right to Protest, Freedom of Expression, and Freedom of Association”, in P. Oliver, P. Macklem and N. Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution (2017), 737, at p. 749; see also Faraday, at p. 353).
[44] In summary, the frameworks under ss. 2(b) and 2(d) have evolved differently in this Court’s jurisprudence. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been recently affirmed in the s. 2(b) context. . Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec
In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec (SCC, 2024) the Supreme Court of Canada allowed an employer appeal from a successful lower court s.2(d) ['freedom of association'] Charter challenge, here against a Quebec law that prohibited managers (here, casino managers) from unionizing.
Here the court reviews Charter s.2(d) ['freedom of association'] history, past cases and the current analytic framework:A. The Framework for Applying Section 2(d) of the Charter
[17] The framework for determining whether legislation or government action infringes s. 2(d) of the Charter was established by this Court in Dunmore. Writing for the majority, Bastarache J. articulated the following two-part test:In order to establish a violation of s. 2(d), the appellants must demonstrate, first, that such activities fall within the range of activities protected by s. 2(d) of the Charter, and second, that the impugned legislation has, either in purpose or effect, interfered with these activities . . . . [para. 13] [18] The issue in Dunmore was whether the exclusion of agricultural workers from Ontario’s statutory labour relations regime infringed s. 2(d) of the Charter. In that context, this Court considered whether underinclusive legislation could interfere with the exercise of a fundamental freedom. Justice Bastarache stated that although there is no constitutional right to protective legislation, underinclusive legislation could lead to an interference with the exercise of a fundamental freedom “in unique contexts” (para. 22). As he explained, “depending on the circumstances, freedom of association may, for example, prohibit the selective exclusion of a group from whatever protections are necessary to form and maintain an association, even though there is no constitutional right to such statutory protection per se” (para. 28).
[19] Justice Bastarache noted three factors that “function to circumscribe, but not to foreclose, the possibility of challenging underinclusion under s. 2 of the Charter” (para. 24). First, the claim must be “plausibly” grounded in a fundamental Charter freedom, rather than in access to a particular statutory regime (para. 24). Second, the evidence must show that the exclusion “permits a substantial interference” with the claimant’s exercise of the fundamental freedom (para. 25 (emphasis in original)). Third, the state must be accountable for the claimant’s inability to exercise the fundamental freedom, in that it “orchestrates, encourages or sustains the violation of fundamental freedoms” (para. 26).
[20] My colleague Justice Côté views these three factors as creating a distinct framework for claims seeking positive state intervention to enable the exercise of the fundamental freedom of association. I respectfully disagree. As I will explain, I read this Court’s jurisprudence as establishing only one framework for evaluating alleged infringements of freedom of association under s. 2(d). That framework asks whether activities are protected under s. 2(d) and whether the government action has, in purpose or effect, substantially interfered with those activities. The factors set out in Dunmore are relevant factors when considering whether s. 2(d) has been infringed, but they do not constitute a separate test.
(1) A Review of This Court’s Jurisprudence
(a) Dunmore (2001)
[21] Justice Bastarache’s analysis in Dunmore itself is instructive for understanding the interaction between the two-part test and what he called factors that “circumscribe, but [do] not . . . foreclose” the possibility of challenging underinclusive legislation under s. 2(d) of the Charter (para. 24). In considering whether the legislative exclusion of agricultural workers from Ontario’s labour relations regime infringed s. 2(d), Bastarache J. readily concluded that the workers sought to engage in the protected s. 2(d) activity of the freedom to organize. He then considered whether the exclusion substantially interfered with the exercise of this associational activity, either in purpose or effect (paras. 30 and 35). Although Bastarache J. declined to find that the exclusion was intended to infringe the workers’ freedom to organize (at paras. 31-33), he accepted that the effect of the exclusion was to substantially interfere with the workers’ associational freedoms (paras. 34-48). He analyzed the effects of the exclusion by considering the three circumscribing factors discussed earlier in his decision (para. 35).
[22] In particular, Bastarache J. noted that the agricultural workers did not seek a right to be included in a specific labour relations regime extended to certain citizens. Rather, they challenged their exclusion from a regime designed “not simply [to] enhance”, but to “instantiat[e] the freedom to organize” (paras. 36-38). The record before the Court demonstrated that the workers were unable to organize without the protective regime (paras. 39-42). The legislative exclusion also substantially reinforced private interferences with the workers’ exercise of their freedoms by placing a chilling effect on non-statutory union activity, such that the state was partly responsible for their inability to associate (paras. 43-48).
[23] Ultimately, Bastarache J. concluded that the legislative exclusion substantially interfered with the agricultural workers’ freedom to organize and was not justified under s. 1 of the Charter (paras. 48 and 65). By framing his analysis around the two-part test, Bastarache J. showed that the general framework for evaluating s. 2(d) claims examines whether the purpose or effect of the government action substantially interferes with associational activity. Justice Bastarache considered the circumscribing factors in making this assessment. As he explained, the “burden imposed by s. 2(d) . . . focuses on the effects of underinclusion on the ability to exercise a fundamental freedom” (para. 28). However, these factors did not constitute a separate test for whether s. 2(d) was infringed.
(b) Health Services (2007)
[24] Six years later, in Health Services, this Court built on Dunmore and confirmed that the substantial interference test applies to all s. 2(d) challenges (paras. 90-92 and 109). The case did not involve a challenge to underinclusive legislation, but rather to legislation that directly interfered with collective bargaining by invalidating certain provisions of collective agreements and preventing future bargaining on certain matters. Speaking for the majority, McLachlin C.J. and LeBel J. referred to “the requirements set out in Dunmore for a breach of s. 2(d)” (para. 96) and confirmed that a party alleging a breach of s. 2(d) must show that the government action, either in purpose or effect, involves a substantial interference with the associational right of collective bargaining (para. 90). They also affirmed the principles, first articulated as circumscribing factors in Dunmore, that s. 2(d) does not guarantee access to a particular statutory regime and that a successful claim under s. 2(d) requires a claimant to establish that the government is responsible for the interference with the protected s. 2(d) right (para. 19). In essence, the majority in Health Services affirmed the three Dunmore factors as general principles and extended them beyond the specific context of underinclusive legislation to all s. 2(d) claims.
(c) Fraser (2011)
[25] In Fraser, McLachlin C.J. and LeBel J. for the majority reaffirmed the framework in Dunmore and Health Services. Fraser concerned the constitutionality of a separate labour relations regime in Ontario for agricultural workers introduced in response to Dunmore. The regime protected the rights of agricultural workers to associate and to make collective representations to their employer but did not include other collective bargaining rights available under the general labour relations regime.
[26] The majority in Fraser affirmed that substantial interference can arise from legislative interference or exclusion from a legislative scheme. McLachlin C.J. and LeBel J. wrote that “[i]f it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established” (para. 47). They also underscored that s. 2(d) does not guarantee access to a particular model for exercising associational freedoms (at para. 45) and that substantial interference must flow from state action rather than from the actions of private employers (para. 73).
[27] The majority in Fraser cautioned that a “bright line between freedoms and rights seems . . . impossible to maintain” (para. 67) and highlighted that this Court “has consistently rejected a rigid distinction between ‘positive’ freedoms and ‘negative’ rights in the Charter” (para. 69). In the majority’s view, “[a] purposive protection of freedom of association may require the state to act positively to protect the ability of individuals to engage in fundamentally important collective activities” (para. 70). As an example, the majority noted that “individuals have a right against the state to a process of collective bargaining in good faith, and that this right requires the state to impose statutory obligations on employers” (para. 73, commenting on Health Services).
[28] Parenthetically, I note that several commentators agree that it is challenging to draw a bright line between positive freedoms and negative rights in the labour relations context. This is, in part, because the state has “deep and extensive involvement” in regulating the rights and freedoms of workers, “both by protecting, and by tightly circumscribing and restricting” associational activities (S. Barrett and E. Poskanzer, “What Fraser Means For Labour Rights in Canada”, in F. Faraday, J. Fudge and E. Tucker, eds., Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012), 190, at p. 193; see also pp. 196 and 223; see also F. Faraday, “Taking a Mulligan: Freedom of Association” in H. Kislowicz, K. A. Froc and R. Moon, eds., Canada’s Surprising Constitution: Unexpected Interpretations of the Constitution Act, 1982 (2024 (forthcoming)), 335, at pp. 349-50). As Professor Judy Fudge has observed, in the labour relations context, while the distinction between positive obligations to provide legislative protection and negative duties to avoid legislative interference “initially seems plausible, it is difficult to defend since, in Canada as in most countries, freedom of association in the labour relations context is integrally bound up with statutory protection” (“Freedom of Association”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (5th ed. 2013), 527, at p. 553; see also J. Cameron, “Due Process, Collective Bargaining, and s. 2(d) of the Charter: A Comment on B.C. Health Services” (2006), 13 C.L.E.L.J. 233, at p. 256). Since in the labour relations context the fundamental freedom of association is exercised mainly through statutory vehicles, one commentator has suggested that “[t]here is no black-and-white line between enabling and enhancing the exercise of a freedom” (S. M. Barrett, “Dunmore v. Ontario (Attorney General): Freedom of Association at the Crossroads” (2003), 10 C.L.E.L.J. 83, at p. 112).
[29] Finally, the majority in Fraser traced a straight line between the approach in that case and the earlier cases of Dunmore and Health Services. The majority stated that the “decision in Health Services follows directly from the principles enunciated in Dunmore” (para. 38; see also paras. 39 and 62) and affirmed that “Health Services applied the principles developed in Dunmore” (para. 43). The majority also drew parallels between the issues in Dunmore and Health Services and the issue in Fraser, stating that “[t]he question here, as it was in those cases, is whether the legislative scheme . . . renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right” (para. 48). Thus, despite the varied framing of the challenged government action in Dunmore, Health Services, and Fraser — underinclusive legislation, legislation directly interfering with association, and insufficiently robust legislation, respectively — in all three cases, this Court applied the same framework of substantial interference.
(d) Mounted Police (2015)
[30] A few years after Fraser, this Court in Mounted Police held that legislation excluding members of the Royal Canadian Mounted Police from collective bargaining under the general labour relations scheme for federal public servants, and imposing an alternative labour relations regime, unjustifiably infringed s. 2(d) of the Charter. Writing for the majority, McLachlin C.J. and LeBel J. stated that s. 2(d) “protects associational activity for the purpose of securing the individual against state-enforced isolation and empowering individuals to achieve collectively what they could not achieve individually” (para. 62). The majority reiterated that s. 2(d) does not guarantee access to a specific statutory regime (at para. 67) and affirmed that “the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining” (para. 72). The majority in Mounted Police also underscored that this Court’s s. 2(d) precedents, from Dunmore to Health Services to Fraser, should be read and understood as consistent with each other, and that, “[m]ore generally, they must be understood consistently with this Court’s purposive and generous approach to s. 2(d)” (para. 77).
(e) Meredith (2015)
[31] The substantial interference framework for s. 2(d) claims was also set out in the companion case to Mounted Police, Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125, where McLachlin C.J. and LeBel J. for the majority stated that, “[i]n s. 2(d) cases, the courts must ask whether state action has substantially impaired the employees’ collective pursuit of workplace goals” (para. 24).
(f) Saskatchewan Federation of Labour (2015)
[32] Most recently, the substantial interference framework was applied by Abella J. for the majority in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, which held that a statutory prohibition on the right to strike infringed s. 2(d) (para. 78).
(g) Summary
[33] To sum up, this Court’s s. 2(d) jurisprudence reveals that the Court has consistently applied a two-part framework that examines whether activities fall within the scope of s. 2(d) and whether government action has substantially interfered with those activities, in purpose or effect. This Court has also highlighted that its s. 2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law.
[34] Dunmore was not overturned by this Court’s decisions in Mounted Police or Fraser. Nor does this Court’s jurisprudence create two tests, one for claims seeking positive intervention from the state and another for claims seeking negative protection against state interference. Although the Dunmore factors have not been identified and analyzed each time the Court has been asked to determine whether legislation or government action infringed s. 2(d) of the Charter, the underlying principles have been consistently reaffirmed. These principles, or Dunmore factors, circumscribe the possibility of successfully challenging underinclusive legislation, but they do not constitute a separate test. Rather, they provide guidance to ensure the analysis is focused on determining whether legislation or government action substantially interferes in purpose or effect with the claimant’s ability to engage in activities within the scope of s. 2(d).
[35] It is not always necessary to consider each Dunmore factor expressly. Sometimes, the state’s responsibility in causing the substantial interference is self-evident. Consider, for example, legislation that prohibits a type of associational activity, such as a ban on striking. The Dunmore factor of ensuring that the interference is attributable to the state rather than a private actor is still relevant, but it is so self-evident that the interference is attributable to the state that it need not be discussed expressly. In other cases, as Bastarache J. cautioned in Dunmore, a court must be careful in evaluating the evidence to disentangle the effects of the impugned legislation or government action from external elements and determine whether the legislation or government action “substantially orchestrates, encourages or sustains the violation” (para. 26).
[36] Nor does Dunmore establish a higher threshold for establishing an infringement of s. 2(d) in claims seeking state intervention. In all cases, the threshold for proving an infringement of s. 2(d) is substantial interference. This threshold was first explained in Dunmore (at para. 25) and has been consistently applied in this Court’s subsequent s. 2(d) jurisprudence (Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25).
[37] It may be harder for a claimant to meet their burden of proof when challenging underinclusive legislation or when seeking state intervention since, as noted above, the effects of underinclusive legislation can be hard to disentangle from other factors. As this Court noted in Dunmore, it will be in “unique contexts” that underinclusive legislation amounts to substantial interference (para. 22). In all cases, however, the threshold to establish an infringement of s. 2(d) remains substantial interference. A claimant alleging that underinclusive legislation infringes s. 2(d) need not meet an elevated threshold.
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[49] It is of limited utility to focus on the remedy sought for another reason. Even if the Court were to determine that the legislative exclusion infringes the freedom of association of the Association’s members, the Court could leave to the legislature the discretion to determine how to give proper effect to the members’ s. 2(d) rights (Fudge, at p. 532; A. Bogg and K. Ewing, “A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada” (2012), 33 Comp. Lab. L. & Pol’y J. 379, at pp. 399-400). For example, although this Court in Mounted Police concluded that the exclusion of RCMP members from the general labour relations regime substantially interfered with the freedom of association, the Court stated that Parliament was not obligated to include the RCMP in the general labour relations scheme and “remain[ed] free to enact any labour relations model it considers appropriate to the RCMP workforce, within the constitutional limits imposed by the guarantee enshrined in s. 2(d)” (para. 156).
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