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

See all articles by Benjamin J. Oliphant

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP; University of British Columbia (UBC), Faculty of Law

Date Written: May 28, 2013

Abstract

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.

Suggested Citation

Oliphant, Benjamin J. and Oliphant, Benjamin J., Exiting the Freedom of Association Labyrinth: Resurrecting the Parallel Liberty Standard Under 2(D) & Saving the Freedom to Strike (May 28, 2013). University of Toronto Faculty of Law Review, Vol. 71, 2013, Available at SSRN: https://ssrn.com/abstract=2271191

Benjamin J. Oliphant (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
757
PlumX Metrics