Key Cases - Fraser v Ontario: The Right to Collective Bargaining (2/3)

“Farm workers fill up bins in the back of a truck with zucchini.” Joe Raedle via Getty Images https://www.marketplace.org/2021/06/14/canadas-agricultural-worker-program-is-under-scrutiny-amid-pandemic/

The Fraser decision was an important step in the establishment of labour rights for agricultural workers. As mentioned in the previous blog of this series, the Ontario Court of Appeal in Fraser held that agricultural workers had the constitutional right to collectively bargain, protected under “freedom of association” as outlined in Section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) [1]. The Court of Appeal’s holding in Fraser is however the result of a series of cases and legislation that established the legal landscape.

History of Agricultural Labour Rights

Labour Trilogy – 1987

Since the mid-1980s, the scope of the right to freedom of assembly under Section 2(d) of the Charter has been debated by Canadian courts, particularly concerning labour rights. In 1987, the Supreme Court of Canada (SCC) heard three cases regarding workers' rights to freedom of association, in a series of cases known as the Labour Trilogy. The cases involved are as follows: Public Service Alliance of Canada v. Canada [2], RWDSU v. Saskatchewan [3], and Reference Re Public Service Employee Relations Act (“Alberta Reference”) [4]. In each case, the SCC held that the right to strike and the right to collective bargaining were not protected under Section 2(d) of the Charter [5]. In his concurring judgement in the Alberta Reference, Justice McIntyre outlined that freedom of association only applies to activities which are performed lawfully by individuals, and that collective bargaining is inherently a group activity, which is not protected under the Charter [6]. 

Labour Relations Legislation – 1990s

Labour relations in the private sector in Ontario has predominantly been governed by the Labour Relations Act, which provides protection for workers’ rights, such as the right to strike, collectively bargain, and resolve labour disputes [7]. However, the Labour Relations Act has historically excluded the agricultural sector. In 1994, the Ontario New Democratic Party passed the Agricultural Labour Relations Act (ALRA), which extended these worker protections to agricultural workers [8]. However, this Act was repealed in 1995 when the Conservative Party was elected in Ontario. This once again excluded agricultural workers from a legislative protection of their rights.

Dunmore – 2001

After the ALRA was repealed, the United Food and Commercial Workers challenged the constitutionality of this exclusion under Section 2(d) of the Charter in Dunmore v. Ontario (Dunmore) [10]. Dunmore reached the SCC in 2001, where the Court held that the lack of statutory protection of agricultural workers’ right to associate was a significant infringement of the right to freedom of association, and that the prior interpretation of this section, which only provided individual protection, was insufficient [10]. Here, the Court recognized the State’s positive obligation to provide agricultural workers with legislative protection [11].

AEPA – 2002

The Ontario government responded to the SCC’s order in Dunmore by enacting the Agricultural Employees Protection Act (AEPA) in 2002 [12]. This act extended only to agricultural workers and facilitated worker organization, but still did not provide the right to collective bargaining. In response, Mr. Fraser, joined by the United Food and Commercial Workers, challenged the constitutional validity of this legislation. Fraser argued that the AEPA violated Section 2(d) and 15 of the Charter, as it infringed on the right to freedom of association by not allowing for collective bargaining, and in doing so, discriminated against agricultural workers [13].

BC Health Services – 2007

In 2006, the Ontario Superior Court dismissed the constitutional challenge in Fraser, holding that the AEPA sufficiently complied with the requirements set out by the Court in Dunmore. Fraser appealed to the Ontario Court of Appeal [14]. Between Fraser’s appeal and the Court of Appeal hearing, the SCC heard a case which changed the legal landscape surrounding the right to collective bargaining: Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia (BC Health Services) [15]. In the 2007 BC Health Services decision, the SCC recognized that the right to collective bargaining was a constitutional right that was protected under “freedom of association” as per Section 2(d) of the Charter [16]. In doing so, the SCC essentially overturned its previous decisions in the Labour Trilogy.

Fraser v. Ontario – Ontario Court of Appeal

Using BC Health Services and Dunmore to guide its decision in Fraser, the Ontario Court of Appeal held that the AEPA violated Section 2(d) of the Charter, as the right to collectively bargain was protected under freedom of association [17]. The Court of Appeal’s 2008 Fraser decision was significant in the establishment and acknowledgement of agricultural workers’ rights – it reaffirmed the constitutional right to collective bargaining and recognized the government’s positive obligation to protect these rights. However, as we will outline in the third and final blog of this series, the fight for the right to collectively bargain did not end at the Court of Appeal; 3 years after the Court of Appeal heard this case, Fraser made it to the Supreme Court.

References

[1] See Fraser v Ontario (Attorney General), 2008 ONCA 760 [Fraser].

[2] See Public Service Alliance of Canada v Canada, [1987] 1 SCR 424 [PSAC v Canada].

[3] See RWDSU v Saskatchewan, [1987] 1SCR 460.

[4] See Reference Re Public Service Employee Relations Act, [1987] 1 SCR 313 [Alberta Reference].

[5] See supra notes 2-4.

[6] See supra note 4 at para 155.

[7] See Labour Relations Act, SO 1995, c 1, Sched. A. LRA

[8] See Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6

[9] See Dunmore v Ontario (Attorney General), 2001 SCC 94, 3 SCR 1016 [Dunmore].

[10] See ibid.

[11] See ibid at para 29.

[12] See Agricultural Employees Protection Act, SO 2002, c 16.

[13] See Fraser v Ontario, [2006] 79 OR (3d) 219.

[14] See ibid.

[15] Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27, [2007] 2 SCR 391 [BC Health Services].

[16] See ibid.

[17] See Fraser v Ontario (Attorney General), 2008 ONCA 760 [Fraser].