Key Cases - Migrant Workers' Rights: A Case Summary of Ontario (AG) v Fraser (3/3)

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The previous blogs in this series reviewed recent cases detailing and acknowledging the discrimination faced by migrant farm workers here in Canada. This third and final blog addresses the landmark decision of Ontario (Attorney General) v Fraser[1] (“Fraser”), dealing with the province’s failure to legislate collective bargaining rights for migrant farm workers. I discuss whether Fraser might have been decided differently today, given the current state of the law. 

Human rights law in Canada has increasingly steered towards a more socially conscious view of the rights of migrant workers. That is, tribunals and courts have relied on the testimonies of social science experts to illustrate the socio-political factors that uniquely impact foreign workers. In Logan v. Ontario (Solicitor General)[2] (“Logan”), the Human Rights Tribunal of Ontario acknowledged that human rights litigation is necessarily contextual. Often, the treatment of foreign workers is informed by racist and colonial structures which underlie programs such as the Seasonal Agricultural Worker Program (the “SAWP”). It is therefore critical that our justice system carefully consider and scrutinize the socio-political frameworks that allow the rights of migrant workers to be consistently violated.

Leading up to Fraser

Farm workers in Ontario were first folded into the province’s labour regime in 1993. However, just a year later, a change in government saw a revocation of their collective bargaining rights through amendments to the Labour Relations Act[3] (the “LRA”). Workers subsequently brought a constitutional challenge, claiming the amendments violated their right to freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”). In Dunmore v. Ontario (Attorney General)[4] (“Dunmore”), the Supreme Court of Canada (the “SCC”) found that farm workers had the right to associate without interference. The SCC acknowledged that the state’s responsibility in respect of s. 2(d) of the Charter is generally ‘”negative” in nature, meaning that Parliament and the provincial legislatures need only refrain from interfering (either in purpose or effect) with protected associational activity’[5]. However, the Court went on to question “whether, in order to make the freedom to organize meaningful, s. 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups.”[6]

Ultimately, the SCC found that such a positive obligation was warranted, and in direct response to the majority decision in Dunmore, the province of Ontario enacted the Agricultural Employees Protection Act[7] (the “AEPA”) in 2002. The AEPA permitted workers to form employee associations, but continued to exclude them from the LRA, and, therefore, the ability to benefit from the protections of the LRA’s collective bargaining provisions. Indeed, the AEPA set up an alternative regulator regime under which farm workers had very limited rights to engage in collective organizing, bargaining and action in the workplace.

Fraser, following on the heels of Dunmore, challenged the constitutionality of the AEPA on the basis that it infringed the right to collective bargaining under s. 2(d) of the Charter. The workers argued that the AEPA would need to include three additional protections before it could be found too comply with the Charter, and they were:

(1)  statutory protection for majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent;

(2)  an LRA-type statutory mechanism to resolve bargaining impasses and interpret collective agreements; and

(3)  a statutory duty to bargain in good faith[8].

Ultimately, following a lengthy analysis, the SCC held that the AEPA was not unconstitutional, as it did not interfere with the workers’ right to associate to achieve collective goals, and therefore their right to freedom of association under s. 2(d) of the Charter. The majority explained that although s. 2(d) guarantees a meaningful process for labour relations, and permits the pursuit of workplace goals, it does not require specific proactive statutory protections.

Fraser Post-Logan

If Fraser were decided today, the SCC may consider the contextual realities of migrant workers and the specific vulnerabilities that leave them more exposed to human rights violations. Under that light, a review of the AEPA may find that the legislation does indeed impede freedom of association.

Unfortunately, back in 2011, the Court did not consider the unique social circumstances of migrant farm workers and instead relied on a strict black-letter analysis of the AEPA and the alleged s. 2(d) infringement. In their analysis, the majority concluded that "good faith negotiation under s. 2(d) requires the parties to meet and engage in meaningful dialogue; it does not impose a particular process; it does not require the parties to conclude an agreement or accept any particular terms."[9]

However, the difficult labour conditions experienced by migrant farm workers, as described in Monrose v. Double Diamond Acres Limited[10] and OPT v Presteve Foods Ltd.[11] underscores their need for greater collective bargaining protections. The SCC’s failure to address the lived experiences of migrant farm workers demonstrates a restricted view of the issues at hand.

Ultimately, had the Court in Fraser considered the unique social circumstances of migrant workers, the decision may have led to a more progressive stance on the need to protect the bargaining rights of farm workers. The Court may have required a more proactive approach.

As Justice L'Heureux Dubé explained in Dunmore, "at minimum the statutory freedom to organize . . . ought to be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, to participate in the lawful activities of the association and to make representations, and the right to be free from interference, coercion and discrimination in the exercise of these freedom."[12] Indeed, where the Government fails to act, there is a real risk that the rights of foreign farm workers will be violated.

Conclusion

Ultimately, the Government’s failure to build out protective labour regimes for migrant farm workers has greatly impacted their s. 2(d) Charter rights and has contributed to serious and systemic human rights violations. As a concluding remark, one possible step on the path to remedying this issue could be to grant migrant workers the right to unionize.

[1] 2011 SCC 20 [Fraser].

[2] 2022 HRTO 1004 [Logan].

[3] 1995, S.O. 1995, c. 1[LRA].

[4] 2001 SCC 94 [Dunmore].

[5] Dunmore at para 19.

[6] Dunmore at para 20.

[7] 2002, S.O. 2002, c. 16 [AEPA].

[8] Fraser at para 7.

[9] Fraser at para 5.

[10] 2013 HRTO 1273 [Monrose].

[11] 2015 HRTO 675 [Presteve].

[12] Dunmore at para 67.