Key Cases - Fraser v Ontario: Agricultural Workers’ Bargaining Rights (1/3)
"farm workers" by minicooper93402. https://www.flickr.com/photos/21703936@N08/13885249977
Agricultural workers in Ontario have long been excluded from the labour protections enjoyed by most other Ontario workers, including the protected rights to organize, collectively bargain, or resolve labour disputes. Michael Fraser, Director of United Food and Commercial Workers Union Canada (UFCW), brought an appeal to the Ontario Supreme Court on behalf of the UFCW to fight for agricultural workers’ right to collectively bargain.
The Facts of the Case
In 2002, the Ontario Government enacted the Agriculture Employees Protection Act (AEPA) [1]. This legislation was created in response to Dunmore v. Ontario [2] – a case which challenged the exclusion of agricultural workers from the Labour Relations Act (LRA) [3], while providing protection to most other workers in Ontario. The main issue in Dunmore was whether the exclusion of agricultural workers from the LRA was a violation of their right of association under S. 2(d) of the Canadian Charter of Rights and Freedoms [4]. Dunmore was appealed and went to the Supreme Court of Canada (SCC), where it was held that this exclusion was in fact a violation of S. 2(d). The SCC ordered the Ontario government to enact legislation which allows agricultural workers the freedom to organize.
Accordingly, the Ontario Government drafted the Agricultural Employees Protection Act (AEPA),which still excluded agricultural workers from the LRA, but created a separate framework that facilitated agricultural worker organization. The AEPA protected employees from intimidation by their employer, stated that workers have the right to associate, and obliged that employers give the associations reasonable opportunity to make representations and that they listen to these representations. However, it still did not provide for a right to unionize or engage in collective bargaining; a Charter challenge was then brought by Fraser.
In 2006, the Ontario Superior Court of Justice dismissed the challenge, holding that the AEPA met the s.2(d) constitutional requirements outlined in Dunmore, which did not include protections for collective bargaining [5].
While this decision was released, the SCC held in B.C. Health Services that s.2(d) actually does include the right to collective bargaining [6]; thus, the Ontario Court of Appeal allowed the decision to be challenged.
In their 2008 decision, the Ontario Court of Appeal considered two major questions: (1) Does the AEPA violate the right to freedom of association under s.2(d) of the Charter, and (2) Does the AEPA violate the right to be free from discrimination under s.15 of the Charter [7]?
Decision and Reasoning
The Ontario Court of Appeal held unanimously that the AEPA violates s. 2(d) of the Charter, but it does not violate s.15.
Section 2(d)
The Court recognizes that agricultural workers are a particularly vulnerable group. In Dunmore, Bastarache J. distinguishes between workers “strong enough to look after [their] interests without collective bargaining legislation" and those "who have no recourse to protect their interests aside from the right to quit" [8], with agricultural workers falling under the latter group. In considering these factors, as well as the purpose of s. 2(d) outlined in B.C. Health Services , the majority in Dunmore found that this provision imposes a positive duty on legislators to extend protection to vulnerable groups.
The reasoning in Fraser accepts this positive duty argument, as well as the argument laid out in BC Health Services that s.2(d) also protects the rights of employees to the process of collective bargaining. In doing so, the majority in Fraser concludes that the AEPA interferes with s.2(d) because it fails to “provide sufficient protections to enable agricultural workers to engage in a meaningful process of collective bargaining” [9].
Section 15
The appellants argued that the AEPA violated their right to equality by denying them the same protections and benefits as other workers. The court agreed with the appellants but rejected a s. 15 claim because the legislation doesn’t draw a distinction “on enumerated or analogous ground” [10]. Instead, the AEPA recognizes that labor relations in the agricultural sector requires a different approach.
Remedies
The AEPA was declared unconstitutional, hence invalid, due to the infringement on the rights of agricultural workers to collectively bargain. The Ontario Government was thus ordered to provide the agricultural workers with sufficient protections for them to exercise their right. The Court left the legislators to assess their options, and the parties to agree on costs.
The Ontario Court of Appeal’s Fraser decision remains important for the establishment of positive obligations on governments to protect agricultural workers’ rights. The extent to which these recent pro-labour decisions will continue to expand workers’ rights in Canada remains to be seen. As we will explain in upcoming blog posts, there will be some obstacles to overcome before collective bargaining rights become constitutionally protected.
Endnotes:
[1] See Agricultural Employees Protection Act, SO 2002, c 16.
[2] See Dunmore v Ontario (Attorney General), 2001 SCC 94, 3 SCR 1016 [Dunmore].
[3] See Labour Relations Act, SO 1995, c 1, Sched. A.
[4] See Canadian Charter of Rights and Freedoms, s 2(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
[5] See Fraser v Ontario (Attorney General), 2008 ONCA 760 [Fraser].
[6] See Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27, 2 SCR 391.
[7] Supra note 4, s.15.
[8] Dunmore, supra note 2 at para 41.
[9] Fraser, supra note 5 at para 101.
[10] Ibid at para 110.