Case Name: Ontario (Attorney General) v. Fraser

Transcription

1 Page 1 Case Name: Ontario (Attorney General) v. Fraser Attorney General of Ontario v. Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Xin Yuan Liu, Julia McGorman and Billie-Jo Church - and - Ontario Federation of Agriculture [2009] S.C.C.A. No. 9 [2009] C.S.C.R. no 9 File No.: Appeal From: Supreme Court of Canada Record created: January 16, Record updated: December 17, ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO Status: Appeal heard and reserved December 17, Catchwords: Charter of Rights -- Freedom of association -- Agricultural workers -- Labour relations -- Right to bargain collectively -- Ontario government enacting legislation which excludes agricultural workers from Labour Relations Act but provides certain protections for organizing -- Whether legislation violates s. 2(d) of Charter by failing to provide agricultural workers in Ontario with sufficient statutory protections to enable them to exercise their right to bargain collectively -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 3(b.1) -- Canadian Charter of Rights and Freedoms, s. 2(d) -- Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16. Case Summary:

2 Page 2 The Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 (the "AEPA"), which came into force on June 17, 2003, excludes agricultural workers from the Labour Relations Act, 1995 ("LRA") but provides certain protections for organizing. The Respondent union and the individual Respondents sought a declaration that the AEPA and s. 3(b.1) of the LRA, which provides that the LRA does not apply "to an employee within the meaning of the Agricultural Employees Protection Act, 2002", were unconstitutional. The application judge dismissed the application, concluding that the AEPA met the minimum statutory requirements necessary to protect the freedom to organize. The Court of Appeal allowed the appeal and declared the AEPA constitutionally invalid. The Court concluded that the AEPA substantially impaired the capacity of agricultural workers to meaningfully exercise their right to bargain collectively, and that the violation of s. 2(d) of the Canadian Charter of Rights and Freedoms was not saved under s. 1 of the Charter. Counsel: Robin K. Basu (A.G. of Ontario), for the motion. Paul J.J. Cavalluzzo (Cavalluzzo Hayes Shilton McIntyre & Cornish LLP), contra. At hearing of appeal: Robin K. Basu and Shannon M. Chace for the appellant. Paul J.J. Cavalluzzo and Fay C. Faraday for the respondents. Anne M. Turley for the intervener Attorney General of Canada. Michel Déom et Geneviève Lessard pour l'intervenant procureur général du Québec. Gaétan Migneault and Michelle Brun-Coughlan for the intervener Attorney General of New Brunswick. Neena Sharma for the intervener Attorney General of British Columbia. Roderick S. Wiltshire for the intervener Attorney General of Alberta. John D.R. Craid and Jodi Gallagher for the intervener Ontario Federation of Agriculture. Roy L. Heenan and Thomas Brady, Esq. for the intervener Federally Regulated Employers Transporation and Communications. Robert Dupont, Pascale Gauthier et Jean H. Lafleur pour l'intervenant Conseil du patronat du Québec Inc. Brad Elberg and Kelly Henriques for the intervener Mounted Police Members' Legal Fund. Augustus G. Lilly, Q.C. and Stephen F. Penney for the intervener Candian Employees Council. Peter A. Gall, Q.C., Donald R. Munroe, Q.C. and Andrea L. Zwack for the intervener Coalition of BC Businesses et al. Selwyn A. Pieters and Adrian A. Smith for the intervener Justicia for Migrant Workers et al. Ian J. Roland and Michael Fenrick for the intervener Canadian Police Association. Joshua S. Phillips and Antony Singleton for the intervener Canadian Civil Liberties Association.

3 Page 3 Steven Barrett and Ethan Poskanzer for the intervener Canadian Labour Congress. Chronology: 1. Application for leave to appeal: FILED: January 16, S.C.C. Bulletin, 2009, p SUBMITTED TO THE COURT: March 2, S.C.C. Bulletin, 2009, p Before: LeBel, Deschamps and Cromwell JJ. 2. Miscellaneous motion by the respondents to file a reply to the intervener's submission on the application for leave to appeal granted March 20, Before: R. Bilodeau, Registrar. S.C.C. Bulletin, 2009, p Application for leave to appeal: GRANTED WITHOUT COSTS: April 2, 2009 (without reasons). S.C.C. Bulletin, 2009, p Before: LeBel, Deschamps and Cromwell JJ. 4. Notice of appeal filed May 4, Appeal not yet inscribed for hearing. S.C.C. Bulletin, 2009, p Motion to state constitutional questions granted May 27, Before: McLachlin C.J. S.C.C. Bulletin, 2009, p UPON APPLICATION by the appellant for an order stating constitutional questions in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTION BE STATED AS FOLLOWS: 1. Does the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16, infringe s. 2(d) of the Canadian Charter of Rights and Freedoms? 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 3. Does s. 3(b.1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, infringe s. 2(d) of the Canadian Charter of Rights and Freedoms? 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

4 Page 4 5. Does the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16, infringe s. 15 of the Canadian Charter of Rights and Freedoms? 6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 7. Does s. 3(b.1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, infringe s. 15 of the Canadian Charter of Rights and Freedoms? 8. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? IT IS FURTHER ORDERED THAT: Any interveners under Rule 55 or Rule 61, shall serve and file their factum and book of authorities on or before November 23, Notice of intervention BY: Attorney General of Saskatchewan Filed June 22, S.C.C. Bulletin, 2009, p Notice of intervention BY: Attorney General of Alberta Attorney General of New Brunswick Attorney General of Newfoundland and Labrador Attorney General of Nova Scotia Procureure générale du Québec Filed June 22, S.C.C. Bulletin, 2009, p Motion to file a reply factum on appeal limited to the issue of s. 15(1) of the Charter not exceeding 10 pages and to file a lengthy factum of 48 pages granted September 3, Before: Rothstein J. S.C.C. Bulletin, 2009, p Motion by the respondent to file a lengthy factum granted November 2, Before: Rothstein J. S.C.C. Bulletin, 2009, p Motions for leave to intervene BY: Federally Regulated Employers Transportation and Communications; Conseil du patronat du Québec Inc.; Mounted Police Members' Legal Fund; Canadian Employers Council; Coalition of BC Business and British Columbia Agriculture Council; Justicia for Migrant Workers and Industrial Accident

5 Page 5 Victims Group of Ontario; Canadian Labour Congress Canadian Police Association Granted November 2, Before: Rothstein J. S.C.C. Bulletin, 2009, p UPON APPLICATIONS by the Federally Regulated Employers Transportation and Communications, the Conseil du patronat du Québec Inc., the Mounted Police Members' Legal Fund, the Canadian Employers Council, the Coalition of BC Business and British Columbia Agriculture Council, Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario, the Canadian Labour Congress and the Canadian Police Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motions for leave to intervene by the Federally Regulated Employers Transportation and Communications, the Conseil du patronat du Québec Inc., the Mounted Police Members' Legal Fund, the Canadian Employers Council, the Coalition of BC Business and British Columbia Agriculture Council, Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario, the Canadian Labour Congress and the Canadian Police Association are granted and the said eight groups of interveners shall be entitled to each serve and file a factum not to exceed 10 pages in length on or before November 23, To the extent that the interests are similar, interveners shall consult to avoid repetition. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by their intervention. 11. Notice of withdrawal of intervention BY: Attorney General of Saskatchewan Filed November 12, S.C.C. Bulletin, 2009, p Notice of withdrawal of intervention

6 Page 6 BY: Attorney General of Newfoundland and Labrador Filed November 17, S.C.C. Bulletin, 2009, p Motion for leave to intervene BY: Canadian Civil Liberties Association Granted November 17, Before: Rothstein J. S.C.C. Bulletin, 2009, p UPON APPLICATION by the Canadian Civil Liberties Association for an extension of time to apply for leave to intervene and for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene by the Canadian Civil Liberties Association is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length on or before November 23, To the extent that the interests are similar, the intervener shall consult with the other interveners to avoid repetition. The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the intervener. The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by its intervention. 14. Notices of withdrawal of intervention BY: Attorney General of Nova Scotia Filed November 25, S.C.C. Bulletin, 2009, p Order on interventions with respect to oral argument RE: Canadian Civil Liberties Association; Federally Regulated Employers Transportation and Communications; Conseil du patronat du Québec Inc.;

7 Page 7 Mounted Police Members' Legal Fund; Canadian Employers Council; Coalition of BC Business and British Columbia Agriculture Council; Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario; Canadian Labour Congress; Canadian Police Association; Ontario Federation of Agriculture 16. Appeal: Procedural History: Filed November 26, Before: Rothstein J. S.C.C. Bulletin, 2009, p FURTHER TO THE ORDERS dated November 2 and 17, 2009, granting leave to intervene to the Canadian Civil Liberties Association, the Federally Regulated Employers Transportation and Communications, the Conseil du patronat du Québec Inc., the Mounted Police Members' Legal Fund, the Canadian Employers Council, the Coalition of BC Business and British Columbia Agriculture Council, Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario, the Canadian Labour Congress and the Canadian Police Association; IT IS HEREBY FURTHER ORDERED THAT the said interveners are each granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeal. AND IT IS HEREBY FURTHER ORDERED THAT the intervener, the Ontario Federation of Agriculture, pursuant to Rule 22(3)(c)(i) is granted permission to present oral argument not exceeding twenty (20) minutes at the hearing of the appeal. HEARD AND RESERVED: December 17, S.C.C. Bulletin, 2009, p Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. Judgment at first instance: Application dismissed. Ontario Superior Court of Justice, Farley J., January 10, Judgment on appeal: Appeal allowed. Court of Appeal for Ontario, Winkler C.J.O. and Cronk and Watt JJ.A., November 17, [2008] O.J. No e/qlhbb

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