Due Process, Collective Bargaining, and S. 2(D) of the Charter: A Comment on B.C. Health Services

Canadian Labour & Employment Law Journal, Vol. 13, pp. 323-363, 2006-2007

20 Pages Posted: 12 Jun 2010

See all articles by Jamie Cameron

Jamie Cameron

York University - Osgoode Hall Law School

Date Written: 2006

Abstract

In its recent decision in B.C, Health Services, the Supreme Court of Canada took the monumental step of overruling its own precedents in the Labour Trilogy, by holding that the Charter guarantee of freedom of association does in fact protect a union's right to engage in collective bargaining. The author argues that, while the decision marks a new era for labour relations in Canada, the Court's methodology may have regressive consequences more generally for the interpretation of associational freedom under s. 2(d) of the Charter. She focuses on three aspects of this methodology. First, in constitutionalizing the right of access to a collective bargaining procedure free from "substantial" government interference (but not the outcomes of that procedure), the decision creates a model of due process which could downgrade the entitlement in s. 2(d) from a substantive to a procedural one. Second, while the imposition of a duty on employers to bargain in good faith may appear progressive, recent case law shows that positive rights and obligations can, ironically, be applied restrictively to narrow the scope of fundamental Charter freedoms. Third, by rejecting an abstract view of associational freedom, and favouring instead an approach that is heavily context-dependent, the Court interpreted s. 2(d) in a way which may have little relevance outside the labour relations setting, and which might be used to deny other types of claims. The author points out, however, that in B.C. Health Services the Court did not attempt to develop a new theory of entitlement for the guarantee. For this reason, she urges that the decision be read as one that is limited to the status of collective bargaining under the Charter, and that the Court has left to another day the task of redefining the conceptual foundation of s. 2(d). The paper closes by outlining several issues which must be addressed in any reconsideration of the guarantee.

Keywords: Right of Access to Collective Bargaining, Government Interference, S. 2(D), Good Faith, Duty to Bargain, Positive Obligation

JEL Classification: K10, K31

Suggested Citation

Cameron, Jamie, Due Process, Collective Bargaining, and S. 2(D) of the Charter: A Comment on B.C. Health Services (2006). Canadian Labour & Employment Law Journal, Vol. 13, pp. 323-363, 2006-2007. Available at SSRN: https://ssrn.com/abstract=1623798

Jamie Cameron (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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