Key Cases - Fraser v Ontario: Post-Fraser and the Uncertain Future of Migrant Workers’ Rights (3/3)
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As we learned in the last post, once the AEPA [1] was declared constitutionally invalid, and the Fraser case was sent up to the Supreme Court of Canada in 2011 [2]. The main issue in the case was based on the s.2(d) Charter [3] claims brought forth by the United Food and Commercial Workers Union.
The majority of the Supreme Court overturned the Court of Appeal decision, instead finding that the AEPA did not violate the s.2(d) right to collectively bargain. That 2007 Court of Appeal decision relied primarily on the interpretation of s.2 as outlined in Dunmore [4] and BC Health Services [5] These two cases stated that s.2(d) should be interpreted purposely, meaning the right includes workers having access to a process that permits the meaningful pursuit of common or individual workplace goals [6]. In Fraser, the Supreme Court held that the AEPA fulfills these requirements by providing a meaningful process to pursue workplace goals, and imposes obligations on employers to consider employee representations in good faith. Inconsistently, the majority states that Fraser does not overturn BC Health Services, rather it clarifies the decision.
The Fraser ruling is seen as a blow to the expansion of labour rights in Canada [7]. In her dissent Justice Abella rejects the majority’s interpretation of the AEPA and aptly describes the majority decision ruling as a weakening of labour rights. She writes, “I have great difficulty with stretching the interpretive process in a way that converts clear statutory language and express legislative intention into a completely different scheme. The AEPA does not protect, and was never intended to protect, collective bargaining rights” [8]. Later she adds, “the complete absence of any statutory protection for a process of collective bargaining in the AEPA cannot be said to be minimally impairing of the s.2(d) right” [9].
I had the opportunity to speak to Eugénie Depatie-Pelletier, executive director of the Association for the Rights of Household and Farm Workers about the 2011 Fraser ruling. She works on issues around migrant workers' rights, many of whom work in the Agriculture sector [10].
Although the ruling was undeniably disappointing, M. Depatie-Pelletier believes that there are still different arguments to be made that could expand labour rights in Canada. One of the issues with the arguments brough forth is that they were overbroad, and she believes a narrower approach could be successful in the future.
M. Depatie-Pelletier explains*:
The plaintiffs in Fraser limited their arguments to a s.2(d) Charter claim, because they wanted the ruling to apply to all workers in Canada; to expand unionization for all workers. In my opinion, they should have also made arguments on the basis of s. 7 (freedom to life, liberty and security of the person)[11]. I say this because for agricultural workers (and all temporary foreign workers), the right to unionize wouldn’t be very helpful. An important challenge that these workers face is within the sphere of immigration law, which will always short-circuit any protections offered by labor law. As it stands, agricultural workers do not have the right to quit or switch employers; their legal status to work in Canada is contingent on the will of their employer. As such, the right to associate isn’t very helpful.
It was also risky to challenge a brand-new law that hadn’t had time to operate - maybe if they had challenged a broader Ontario labor law, their arguments may have worked better. Of course, the freedom to associate is important, but agricultural and other migrant workers face much greater challenges (namely deportation and safety concerns).
I asked M. Depatie-Pelletier about equality arguments under s. 15 of the Charter [12].
I think that a s.15 claim is a strong option, with some caveats. In my work, I am making a claim that withholding the right to switch employers is discriminatory on the analogous ground of citizenship status. Not only this, but this limitation of rights also increases risk to the workers, triggering a s.7 claim. I believe that a broadening of s.15 (addition of more analogous grounds) would be very helpful in expanding rights for agricultural workers.
I will also add that in Quebec, the Human Rights Code protects against discrimination based on social condition (level of education/type of work/occupation), which could also strengthen this line of argument.
Many thanks to M. Depatie-Pelletier for her expertise on this topic. As of the time of writing, the AEPA is still in force in Canada, and many migrant workers do not have a legitimate right to switch employers, nor to associate.
If the legal questions around migrant workers are of interest to you, check out the constitutional challenge that M. Depatie-Pelletier and her team are working on, here. They are focusing on migrant workers' rights, using s.7 of the Charter and s.96 of the Constitution Act, 1867 (which protects the right to access to justice).
*Disclaimer: Text in italics has been modified for clarity. I’ve done my best to accurately depict M. Depatie-Pelletier's opinions from our conversation, but have not captured her words verbatim.
References
[1] See Agricultural Employees Protection Act, SO 2002, c 16. [AEPA]
[2] Ontario (Attorney General) v. Fraser, 2011 SCC 20 [Fraser]
[3] 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.
[4] See Dunmore v Ontario (Attorney General), 2001 SCC 94, 3 SCR 1016 [Dunmore].
[5] Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27, [2007] 2 SCR 391 [BC Health Services].
[6] See Fraser 2011, paras 38, 42
[7] See, for example Brian A Langille, “The Trilogy is a Foreign Country, They Do Things Differently There”, (2015) 45:2 Ottawa Law Review 285
[8] Fraser 2011, para 322
[9] Ibid, para 368
[10] See Statistics Canada, Foreign workers in the Canadian agriculture industry, 2021, (Economic and Social Report), by Yan Zhang, Yuri Ostrofsky and Amelie Arsenault, online <www150.statcan.gc.ca/n1/pub/36-28-0001/2021004/article/00002-eng.htm>
[11] See Canadian Charter of Rights and Freedoms, s7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
[12] See Canadian Charter of Rights and Freedoms, s15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.