This past June, the Supreme Court of Canada did something that it rarely does: expressly overrule one of its judicial precedents, acknowledge that its prior analysis was wrong, and begin to rebuild its legal foundations anew. Such a volte-face by the court is even rarer for cases under the Charter of Rights and Freedoms. Yet all of this happened in B.C. Health Services.¹

In its path-breaking decision, the Court ruled the British Columbia government had breached the Charter rights of healthcare and social service employees when it invalidated a range of substantial workplace protections won by their unions during previous rounds of collective bargaining. With the decision, the Court reversed 20 years of Charter jurisprudence on workplace associational rights and set the Constitution on a new course.

The judgement in B.C. Health Services came as an enormous surprise to most Charter watchers. In 1987, the Supreme Court had issued its famous “labour trilogy” decisions, where it stated, with arid and unimaginative reasoning, that legislative restrictions on collective bargaining and legal strikes did not offend the freedom of association guarantee — Section 2(d) — of the Charter. Other decisions followed in the 1990s, which only confirmed the Court’s lifeless approach to Section 2(d).

But beginning in 2001, trade unions won unexpected Charter victories in cases involving mandatory union membership (Advanced Coring and Cutting), associational rights of agricultural workers (Dunmore) and secondary picketing (Pepsi-Cola). While the Court maintained these decisions were consistent with its labour trilogy precedents, its reasoning was strained and unconvincing. Thus, when the Charter challenge in B.C. Health Services was making its way through the courts, most labour lawyers and legal academics expected more of the Supreme Court’s quarter-loaf approach to associational rights in the workplace.

The Background

In 2002, in the midst of official government concerns over the level of public healthcare spending, the British Columbia government enacted the Health and Social Services Delivery Improvement Act (Bill 29). Passed three days after it received first reading, Bill 29’s stated goals were to reduce healthcare costs and improve delivery of health services. Its actual impact was to substantially erode many important bargaining rights acquired by healthcare and social service employees in prior collective agreements. When enacting Bill 29, the B.C. government conducted no meaningful negotiations or consultations with the affected unions.

Bill 29 introduced three significant changes to the collective agreement landscape of B.C. healthcare and social service employees. First, it substantially weakened their employment security rights in a range of areas, including job transfers, contracting-out, the status of employees under contracting-out arrangements, job security programs and layoff and bumping rights. Second, Bill 29 precluded bargaining on a number of these issues in future collective agreements. And third, it freed the hands of healthcare employers to unilaterally reorganize work relations with their employees without the previously-bargained requirements of consultation and notice. In the words of the Supreme Court, these changes “had profound effects on the employees and their ability to negotiate matters of great concern to them.”

Several of the unions affected by Bill 29 launched a Charter challenge, but lost before the B.C. Supreme Court and the Court of Appeal. Both courts relied on the Supreme Court of Canada’s prevailing caselaw to find that no associational rights had been violated.

The SCC Ruling

The Four Foundations of Freedom of Association in the Canadian Workplace

The Supreme Court of Canada, in a 6-1 ruling, allowed the appeal and struck down parts of the B.C. legislation. The coauthors of the ruling — Chief Justice Beverley McLachlin and Justice Louis LeBel — laid out four detailed propositions for endorsing a broader, and bolder, approach to Section 2(d):

     The prevailing Section 2(d) caselaw is constitutionally unsupportable. The premise of the Supreme Court’s rulings in the 1987 labour trilogy was that associational rights were those exercisable only by individuals, which meant that strikes, collective bargaining and the formation of unions — fundamentally collective activities — enjoyed no Charter protection. In B.C. Health Services, the Court finally acknowledged that this stance was untenable, and endorsed the collective content of associational rights.

     Collective bargaining is an associational right under the Charter. The Court conducted an enlightened review of the history of trade unions and labour law in Canada. It expressly noted that employees acquired formal recognition only when they “used the economic weapon of strikes to gradually force employers to recognize unions and to bargain collectively with them.” The Court continued: “Historically, (collective bargaining) emerges as the most significant collective activity through which freedom of association is expressed in the labour context.”

     International human rights and labour law protects collective bargaining as part of freedom of association. The Court placed considerable weight on international conventions and instruments Canada has signed, which expansively protect freedom of association and collective bargaining. These documents include the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Labour Organization’s Convention No. 87 (Concerning Freedom of Association), all of which “provide a persuasive source for interpreting the scope of the Charter,” said the Court.

     Charter values support the inclusion of collective bargaining in Section 2(d). B.C. Health Services ruled that collective bargaining is intimately tied up with core Charter values, such as human dignity, equality, liberty, workplace democracy and the autonomy of workers, because they enable employees to assert an effective voice in the workplace.

The Right to Collective Bargaining:
What does it Entail?

Having established that collective bargaining deserves Charter protection, the Court then turned to assessing what the scope and content of this newly-incorporated right would be. The Charter, noted the Court, is designed to protect individuals and designated groups against infringement of their rights by the state. Accordingly, “the constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment.”

The Court found the Charter provides a broad protection for the right to collectively bargain. Section 2(d) guarantees that workers possess the rights to band together, to collectively present demands to their employers and to engage in dialogue with them to achieve their work-related goals. The associational guarantee also imposes two important constitutional obligations on governments. First, government as employers must agree to meet with unions and bargain in good faith “in pursuit of a common goal of peaceful and productive accommodation.” And second, governments must not enact legislation that “substantially interferes” with the ability of a trade union to collectively bargain over workplace issues.

“Substantial interference” is a high bar for unions to establish. The Court defined the term as any attempt to seriously undermine the activity of workers joining together to negotiate improved working conditions. Each case is fact-specific and contextual. For the Court, two factors are important. First, what is “the importance of the matter to the process of collective bargaining?” And second, what is “the impact upon the collective right to good faith negotiations and consultations?” Thus, acts of bad faith, laws and state actions which inhibit or deny meaningful consultation about working conditions, and statutes which unilaterally renounce significant negotiated terms in existing collective agreements, would — according to the Court — likely amount to “substantial interference.”

Applying the New Section 2(d)
Principles to Bill 29

Armed with these expanded constitutional tools, the Court turned to scrutinizing the impugned provisions of Bill 29. Some of the challenged sections of the Act, which made relatively minor modifications to working conditions, such as the transfer and reassignment of employees, survived the constitutional review, but Bill 29’s more serious intrusions into existing collective agreements rights were constitutionally fatal. The legislative removal of bargained rights on layoffs, contracting out and bumping and the prohibition against bargaining in the future over these issues, dealt with matters “central to the freedom of association,” said the Court.

Under Charter analysis, if a plaintiff establishes that a government breached a fundamental right, then the government has the onus under Section 1 to prove that the breach was nevertheless justified as per the values of a “free and democratic society.”

The Court ruled that the B.C. government failed to prove the necessary justification for the breach. It stated: “The records disclose no consideration by the government of whether it could reach its goal by less intrusive measures, and virtually no consultation with the unions . . . (Bill 29) was adopted with full knowledge that the unions were strongly opposed to many of its provisions, and without consideration of alternative ways to achieve the government’s objectives.”

Brave New World of Work?

New doors for the protection of workplace rights have been opened by B.C. Health Services. The unrestricted authority of governments to legislate as they please in labour relations has, for the first time, been constitutionally tempered. In future cases, Canadian unions will be asking the courts to extend the coverage of B.C. Health Services to the right to strike and the right to join trade unions. RCMP officers and Ontario agricultural workers — who are both expressly excluded from labour legislation — launched separate Charter challenges several years ago for the right to form and join trade unions. Their legal prospects, dim when they initiated their legal actions, have improved significantly with the Supreme Court’s ruling.

As with any Supreme Court decision, Charter watchers must avoid the temptations of irrational exuberance. B.C. Health Services is not the panacea to the declining rate of unionization in Canada. Nor is it the magic bullet to challenge every instance of ungenerous labour legislation or each reversal in collective bargaining gains. For all its constitutional vigour, the Supreme Court’s ruling has visible weaknesses: the “substantial interference” standard is quite demanding and the decision’s focus on legislative process may well enable cunning governments to meet the consultation requirements without curbing their objective of rolling back statutory or bargained employment rights.

Yet, this is a labour relations moment to savour. Unions and the employees they represent are stronger because of the ruling. As a result of B.C. Health Services, governments now have to weigh Charter obligations — a considerable responsibility — when considering legislative intervention into the industrial relations process. It is now up to the Canadian labour movement, with its hard-won constitutional breathing space, to develop the vibrant political and social strategies that will ensure its vitality to continue into the brave new world of work.

1. Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, (2007 SCC 27, available at: http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html.

Michael Lynk is associate professor of law at the University of Western Ontario, where he teaches labour and constitutional law. He is the coauthor of Trade Union Law in Canada.

The views expressed are those of the author and not necessarily CAUT.

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