A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada

Abstract

This article examines recent Canadian jurisprudence on freedom of association and the right to collective bargaining, focusing in particular on the recent decision of the Supreme Court of Canada in Fraser v Ontario. The article argues that the right to collective bargaining is not in fact protected by the majority speech in Fraser because of a failure to grasp what collective bargaining actually is (especially as defined in international labour standards). The second part of the article examines the dissenting view in Fraser, which draws heavily on the work of Brian Langille, a Canadian labour law professor. That view defends a ‘thin’ conception of freedom of association that would exclude a right to collective bargaining on three grounds: that exclusion respects the Hohfledian distinction between ‘rights’ and ‘liberties’; that freedom of association should be understood as an individual rather than a group right; and that it violates neutrality to identify collective bargaining as an activity of special constitutional importance in freedom of association. The article engages critically with those arguments, and defends an alternative ‘thick’ conception of freedom of association that encompasses a fundamental right to collective bargaining.

Keywords: Labour law, collective bargaining, freedom of association, Fraser v Ontario