Exiting the Freedom of Association Labyrinth: Resurrecting the Parallel Liberty Standard Under 2(D) & Saving the Freedom to Strike
Posted: 29 May 2013 Last revised: 2 Oct 2017
Date Written: May 28, 2013
Following the constitutionalization of rights to unionize in Dunmore v. Ontario (AG), and collective bargaining in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia and Ontario (AG) v. Fraser, the question of whether the Charter contains a freedom to strike has been thrust into the constitutional limelight. This paper seeks to assess the present state of the Supreme Court of Canada's section 2(d) doctrine, with specific reference to collective action in the public sector. In particular, it will propose that the 'parallel liberty' definition - the freedom to do with others what one is free to do alone - is a principled default approach to section 2(d), that should be deviated from only in exceptional circumstances. It is argued that this standard maintains consistency with the Court's approach to other fundamental freedoms, recognizes the important distinction between freedoms and rights, and fortuitously avoids the complete usurpation of the legislative role in defining the scope and bounds of collective bargaining. At the same time, the parallel liberty standard would provide meaningful recourse where the fundamental freedom of employees to act collectively as they are free to act together, such as through back-to-work orders, has been infringed.
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