Why are Canadian Judges Drafting Labour Codes - and Constitutionalizing the Wagner Act Model?

Abstract

In BC Health Services, a revolutionary 2007 decision of the Supreme Court of Canada, the guarantee of “freedom of association” in the Canadian Charter was interpreted to comprehend a constitutional “right” to bargain collectively. Further, this new constitutional guarantee was held to include a duty to bargain on the part of the employer. This legal duty was non-existent at common law, and is in fact a very prominent innovation of the of the American Wagner Act model of collective labour relations which has been in place, with some local modification, in Canada since the 1940s. BC Health constituted an invitation to constitutional litigators and judges in Canada to get on with the job of constitutionalizing other structural elements of the Wagner Act Model. This invitation was accepted and dramatically acted upon in the 2008 decision of the Ontario Court of Appeal in Fraser v Ontario (appeal to be heard by the Supreme Court of Canada on December 17, 2009) where other idiosyncratic but critical elements of the model, including the idea of “exclusive” union representation, were constitutionalized. This paper argues that the twin ideas of judges creating a “judicial labour code”, cut and pasted from the Wagner Act Model, and giving it the status of a constitutional guarantee, are both undesirable and avoidable. In particular, the paper questions whether ILO "jurisprudence" concerning freedom of association can be relied upon, as it has been by the Supreme Court and some authors, to underwrite this enterprise.

Keywords: freedom of association, constitutional law, labour law, ILO