"I will not give you a penny more than you deserve": Ontario v. Fraser and the (uncertain) right to collectively bargain in Canada

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Author: Alison Braley
Date: Dec. 2011
From: McGill Law Journal(Vol. 57, Issue 2)
Publisher: McGill Law Journal (Canada)
Document Type: Article
Length: 9,150 words
Lexile Measure: 1840L

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This case comment first reviews the jurisprudence that most directly informed the Supreme Court's ruling in Health Services. Second, this case comment applies the logic underpinning Health Services to the facts of the case at bar. The general argument is that Ontario v. Fraser represents an inconsistent application of two concepts that are central to the understanding of collective bargaining that the SCC had elucidated in Health Services: the meaning of "good faith" and "substantial interference". The comment concludes that Ontario v. Fraser has narrowed the right to collectively bargain to a greater degree than both proponents and opponents of Health Services might have anticipated.

Ce commentaire d'arret fait d'abord etat de la jurisprudence ayant darectement informe la Cour supreme dans sa decision Health Services. Ensuite, ce commentaire d'arret applique la logique sous-jacente de Health Services aux faits en l'espece. L'argument general est que l'arret Ontario c. Fraser represente une application incoherente de deux concepts centraux, pour la comprehension du droit a la negociation collective, que la CSC a elucides dans Health Services : le sens des concepts de << bonne foi >> et d' << entraves substantielles >>. Ce commentaire conclut que l'arret Ontario c. Fraser limite le droit a la negociation collective a un tel degre que tant les defenseurs que les opposants de l'arret Health Services n'auraient pu l'anticiper.

Introduction I. Relevant Jurisprudence and Developments A. Dunmore B. The Agricultural Employees Protection Act (AEPA) C. The AEPA at Trial D. Health Services 1. The Right to a Meaningful Process II. Ontario v. Fraser A. Analysis 1. The Wagner Model of Collective Bargaining 2. The Two Senses of Good Faith 3. The Tribunal 4. Substantial Interference Conclusion

Introduction

On 20 April 2011, the Supreme Court of Canada (SCC) released its much-anticipated decision in Ontario (Attorney General) v. Fraser. (1) This decision held that the labour regime for agricultural workers in Ontario as set out in the Agricultural Employees Protection Act (2) is constitutional. The Fraser decision had the effect of overturning an Ontario Court of Appeal (OCA) ruling that had held that the AEPA was unconstitutional. The reason for the OCA's decision was that the AEPA did not extend to agricultural workers an adequate scheme for collective bargaining, a conclusion with which the SCC disagreed.

Unsurprisingly, employer groups are encouraged by Fraser, particularly the Ontario Federation of Agriculture (OFA), which enjoyed intervener status at early trial stages. (3) So too is the Government of Ontario. (4) The labour community, by contrast, is "shocked" (5) by the decision. Stan Raper of United Food and Commercial Workers Canada (UFCW) referred to the decision as less worthy than "fertilizer". (6) It is arguable that one point upon which the employer and labour groups agree, however, is that this particular outcome was unanticipated. That is because the SCC's landmark decision in Health Services, (7) which provided a level of constitutional protection for collective bargaining, had seemingly changed the landscape of labour relations. Commentators claimed that the Health Services decision represented an "about-face"8...

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Gale Document Number: GALE|A278880931