The Charter of Rights and Freedoms and Workplace Law:

Transcription

1 The Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners Professor David J. Doorey, Ph.D York University

2 David J. Doorey The Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners Professor David J. Doorey, Ph.D York University 1. What is the Charter, and What Does it Govern? 2. The Two-Step Charter Analysis a. Step One: Has Government Action Violated a Charter Right or Freedom? b. Step Two: Is that Infringement Justified in a Free and Democratic Society? c. The Section 1 Oakes Test 3. What Rights and Freedoms Found in the Charter Apply to the Employment Relationship? a. Freedom of Association [Section 2(d)] b. Freedom of Expression [Section 2(b)] c. Equality Rights [Section 15] Introduction One of my favorite lines from an academic book is found in Professor Hugh Collins book, The Employment Contract. He opens the book with this great statement: As this is a short book, it has taken a long time to write. 1 I love that line, because it strikes me too that finding a way to express complex ideas in precise and short spaces is an art form. This paper is not a piece of art, by any means. But it is intended to fill a gap in the literature I ve noticed since I began teaching labour law to non-law students. It explores how the Canadian Charter of Rights and Freedoms influences the law of the workplace. Much ink has been spilt on this subject, but most of it is exceedingly legalistic and mysterious to students only beginning their study of industrial relations, law, and the Charter. So my goal is a simple one. It is to try to explain, at a basic introductory level, what the Charter does, and how it has influenced labour and employment law, assuming that the reader has no prior background whatsoever. This has 1 H. Collins, The Employment Contract (Oxford U. Press, 2003), v. 2

3 3 not been easy; I may not have succeeded. The Supreme Court of Canada has certainly done its best to make the law inaccessible to all but a few constitutional law experts. But, to cite another of my favorite lines, this time from Gaius Cassius, in great attempts, it is glorious even to fail. Onward we push. 1. What is the Charter, and What Does it Govern? The Charter of Rights and Freedoms is one of the most important and yet most misunderstood legal instruments in Canada. The Charter has been part of the Canadian Constitution since Here is the first essential point to grasp: the Charter only governs the actions of governments, not private citizens and private companies. How do governments act? Two ways come quickly to mind: (1) by passing and administering laws and (2) as an employer of its own employees. When the government acts in these capacities, it must not do so in a manner that is inconsistent with the Charter s guarantee of rights and freedoms. Most Charter cases are targeted at government legislation that is alleged to be inconsistent with the Charter. However, occasionally the complaint is that the government as employer has contravened the Charter in the manner in which it has treated its employees. The fact that the Charter applies directly to government employers but not private sector employers creates an odd situation. It means if my employer is the City of Toronto, the Province of Ontario, or the Government of Canada, for example, then my employer and my employment contract must comply with the rules in the Charter. However, if my employer is Walmart or General Motors, or any other non-government entity, then the Charter does not regulate how my employer treats me, or the terms of my employment contract. Walmart cannot violate the Charter rights of its employees, because the Charter does not apply to Walmart. Often it is obvious whether an employer is the government, but not always. Occasionally, courts have been asked to decide whether an employer is public on the basis that it receives significant government funding, for 3

4 David J. Doorey example, or is highly regulated by the government. Colleges are an example. They are not the government in an obvious sense, but because they receive a significant amount of public funding and are under significant control of the provincial governments, the Supreme Court of Canada has ruled that colleges are government actors for the purposes of the Charter. 2 Therefore, in a case called Lavigne v. OPSEU, the Supreme Court ruled that the Charter applied directly to a collective agreement between a union and a community college. 3 However, universities are not the government, because although universities also receive public funding, governments have far less direct control over universities than they do colleges The Two-Step Charter Analysis Before turning to consider what rights and freedoms are protected, and how Charter litigation has influenced the employment relationship, it will be useful to provide a basic overview of how the Charter operates in practice. There is a two-step process for considering whether government action contravenes the Charter. This process begins when an application is filed that alleges the government has violated the Charter. This is usually described colloquially as a Charter Challenge. a. Step One: Has Government Action Infringed a Charter Right or Freedom? The first step is to decide whether government action contravenes a protected right or freedom. If it does not, then the Charter doesn t apply, the case will be dismissed, and the government s action confirmed as lawful. However, if the government s actions do violate a Charter right or freedom, then 2 Lavigne v. OPSEU, [1991] 2 S.C.R Ibid. 4 McKinney v. University of Guelph [1990] 3 S.C.R

5 5 it is necessary to move onto Step 2 (explained below) to determine if the violation is nevertheless permitted to protect some greater good. Sometimes, it is obvious that the government has violated a Charter right, so that the real argument takes place at Step 2 of the process. For example, in 1998, the Ontario government led by Premier Mike Harris introduced a law that made it illegal for some workers participating in a welfare program to join a union. 5 There is no doubt that such a law violates the Charter s protection of freedom of association, since (as we will see below), the Supreme Court has recognized since the 1980s that the right to form and join a union is protected by the Charter. 6 If a Charter challenge were commenced against such a law, the case would probably move directly to Step 2, since the government would likely concede that Section 2(d) [freedom of association] was infringed by the law. However, sometimes whether or not government action has violated a Charter right or freedom is not at all clear. This is because the courts have filled in the vague meanings of the protections listed in the Charter on a case-bycase basis. For example, what precisely freedom of association in section 2(d) means has been the subject of over two decades of litigation. Much the same can be said of the other sections of the Charter that confer rights and freedoms. Many lawyers have put their children through university on the huge fees paid them for arguing over the meaning of the Charter. b. Step Two: Is that Infringement Justified in a Free and Democratic Society? If the court finds that the government has interfered with a Charter right or freedom, then we move onto the second step of the analysis. That step is described in Section 1 of the Charter, which reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 5 An Act to Prevent Unionization (Ontario Works), 1998, c Professional Instutute of the Public Service of Canada v. Northwest Territories ( PiPPs ) 5

6 David J. Doorey This section explains that sometimes it is justifiable for a government to violate someone s Charter rights. It requires a balancing of interests. Sometimes the cost to society associated with protecting Charter rights outweighs the benefit to any individual of having their Charter right affirmed. When that is the case, Section 1 of the Charter allows a court to uphold the Charter violation in order to protect the greater good. We say then that Section 1 has saved the government s violation of the Charter right or freedom. c. The Oakes Section 1 Test As you can see, the language in Section 1 is very vague about how courts should undertake this balancing. As a result, it confers a lot of discretion on judges. In one of the earliest cases after the Charter was enacted, the Supreme Court created a Section 1 test that must be applied whenever this balancing of interests is performed. That test became known as the Oakes Test because the case in which it was explained was called R. v. Oakes. 7 The test has evolved since then, and developed by many subsequent decisions that have applied it. However, the basic model remains as defined in Oakes. It is a proportionality test, meaning it guides judges in their assessment of whether the benefit to society of allowing the Charter violation outweighs the harm associated with upholding the Charter right. I said a moment ago that the Charter requires a two-step analysis. So does the Oakes test. Step 1 of the Oakes test requires that the government prove that the objective, or reason for the limitation on the Charter right, relate to a pressing and substantial concern. This means, essentially, that the Government must persuade the court that it is attempting to address a serious public concern. It can t just infringe Charter rights because it feels like it, in other words. Usually, the government passes this step without much difficulty, but not always. 7 R. v. Oakes, [1986] 1 S.C.R Oakes was not an employment law case, but the analysis applies to all Charter cases. 6

7 7 If the court accepts that the purpose of the government action is to address a pressing and substantial concern, then the court will move on to Step 2 of the Oakes test, which is known as the proportionality test. This is where a lot of Charter challenges are won and lost. Here is how the Supreme Court described the proportionality test in Oakes: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. [the Rational Connection test]. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question [the minimal impairment test ]. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". [the balance of harm test] There have been dozens of court cases in which a Charter right was infringed by the government, but nevertheless the government s actions were saved by Section 1. Some of those cases have related to workplace law, as we will see below. When we say that the Charter infringement was saved by section 1, what we mean is that the infringing law or action of the government is lawful, and need not be changed. On the other hand, if the Court finds that a violation of a Charter right or freedom is not saved by Section 1, it will usually order that the government s actions were unlawful and must be undone. That is, if the violation was in the form of a law that violated the Charter, that law will be stuck down as illegal, although sometimes the Court will give the government a period of time to fix the situation. 3. What Rights and Freedoms Found in the Charter Apply to the Employment Relationship The Charter includes a set of fundamental rights and freedoms. Several of them have application to the employment relationship. I will deal first with the Section 2 fundamental freedoms, which include most notably for our purposes, 7

8 David J. Doorey freedom of expression (section 2(b)) and freedom of association (section 2(d)). These sections have been at the centre of much debate about the role (or lack thereof) of unions and collective bargaining in Canadian society. I will then review Section 15 (equality rights), which despite some initial promise, has had relatively little impact on labour law. My objective is to quickly review how these sections have influenced the employment relationship. A. Freedom of Association (Section 2(d)) Art. 2: Everyone has the following fundamental freedoms: (d) freedom of association. Take a deep breath; grab some coffee. This will be painful, I m afraid. Section 2(d) of the Charter says simply that everyone has freedom of association. Freedom. Of. Association. What do those three words mean? That seemingly straightforward question has proven to be one of the most mystifying Charter questions in the realm of employment relations. Think about the possibilities. It could mean simply a freedom for employees to form and join a union, like starting a poker club and asking people to join. That s a very narrow interpretation. Now, start to go wider. Does freedom of association ( FA ) also include a freedom to play poker, since why else would someone form and join a poker club if not to play poker? To bring it back to employment, does it include not only the freedom to form and join a union, but also the freedom to do the very things that unions do: engage in collective bargaining on behalf of workers, lobby governments for legal reforms helpful to workers, strike to win better conditions of work for employees? Imagine you have a bucket that represents FA. Now, imagine there are sticks scattered around the yard that represent specific freedoms the freedom to form a union; the freedom to join a union; the freedom to engage in collective bargaining; the freedom to strike, and other specific freedoms that could possibly fall with the broad phrase freedom of association. The debate is what 8

9 9 bundle of those individual freedoms should be placed into the FA bucket, and which should be left to rot in the yard. This question has been the subject of legal battles for decades. The fact that FA includes at least a freedom to form a union, and to join it was settled early on. Much more contentious has been the debate over whether FA also includes the freedom to collective bargaining and to strike. In relation to the collective bargaining at least, this controversy is somewhat surprising because during the debates leading up to the creation of the Charter, the government representative very clearly stated that freedom of association includes a freedom to organize and bargain collectively. 8 Nevertheless, when the scope of FA reached the Supreme Court of Canada for the first time, it rejected this position and found that FA does not include a freedom to collective bargaining or to strike. The Labour Trilogy (1987) and PIPSC (1990) The first set of cases to reach the Supreme Court became known as the Labour Trilogy, because it involved three decisions released simultaneously in The key question was whether freedom of association included a right to strike. The Court ruled that it did not. Several years later, in PIPSC v. NWT (Commissioner), the Court added that FA also does not include a right to collective bargaining. 10 The Court in these cases applied a very narrow definition of freedom of association. It included, essentially, a right to form and join associations. It also included the right to do as a group those things that individuals have a legal right to do. But it did not protect the activities that by their nature are collective activities, into which the Court placed collective bargaining and strikes on the theory that these activities were inherently 8 Robert Kaplin, the Acting Minister of Justice, said this: Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that it is already covered in the freedom of association already in. See discussion in Pothier, supra note at Re Public Sector Service Employee Relations Act, [1987] 1 S.C.R. 313 [known as the Alberta Reference case]; P.S.A.C. v. Canada, [1987] 1 S.C.R 424; R.W.D.S.U. v. Sask., [1987] 1 S.C.R [1990] S.C.R

10 David J. Doorey collective activities. 11 Since the Charter did not protect collective bargaining or strikes, governments were free to restrict or prohibit both. Dunmore (2001) However, in 2001, the Supreme Court decided to revisit its narrow definition of freedom of association. In a case called Dunmore, the Court ruled that FA also includes protection of some activities that are inherently collective activities, such as making collective representations to employers. 12 Dunmore involved the exclusion of agricultural workers from the Ontario Labour Relations Act (LRA). The Court ruled that, in order for agricultural workers to be able to exercise their Charter right to make collective representations to their employer, they needed the government to protect them from their employers, who might not like that idea, and might be inclined to threaten, intimidate, or dismiss the workers so that they do not consider acting collectively. The LRA s unfair labour practice sections would achieve this, but the Ontario government had excluded agricultural workers from those protections in order to protect the family farm from the costs and potential interruptions sometimes associated with collective bargaining. Dunmore is a tricky case to understand. This is because it wasn t obvious what the government action was. Remember, the Charter only regulates governments. Keep in mind what the workers argued in the case: their claim was that they can t join unions and make collective representations to the employer because their (private sector) employers might threaten or dismiss them, and there was no law stopping their employers from doing that because the government had excluded agricultural employers from the unfair labour practice provisions that apply to most other employers. In other words, the argument was that the government action consisted of a failure of the government an omission to apply the unfair labour practice sections in the Labour Relations Act that apply to most other workers to agricultural workers. 11 This approach has been heavily criticized by academics. For example, individuals have a legal right to bargain with their employers, so some academics questioned why then, applying the courts own reasoning, they do not have a right to bargain with their employers collectively. 12 Dunmore v. Ontario (Attorney-General), [2001] 3 S.C.R

11 11 The Court ruled in Dunmore that when a government creates a protective legal regime like the Labour Relations Act it can t then exclude some workers from the protections if doing so substantially interferes with the ability of those workers to exercise the rights protected by freedom of association. Since agricultural workers had proven unable to form unions and make collective representations to their employer without protections against employer interference, excluding them from the statutory protections afforded other workers was a violation of Section 2(d). On the other hand, if excluding workers from a protective labour law regime does not substantially interfere with the ability of workers to form unions and make collective representations to their employer, then Section 2(d) is not infringed. Therefore, in a case called Delisle v. Canada, the Court ruled that excluding the RCMP from labour legislation did not violate Section 2(d) because police, unlike agricultural workers, had proven capable of forming strong unions without government protections. 13 You follow that? The breach of Section 2(d) in Dunmore was not saved by Section 1. The Ontario government was unable to convince the Court that an exclusion of all agricultural workers from legislative protections available to other workers was a proportional response, even if protecting family farms were a valid objective. The exclusion failed the minimum impairment part of the Oakes test. Protecting the family farm from effects of unionization, even if a valid and pressing objective, does not require an absolute ban on the rights of all agricultural workers to form associations without employer interference. Many farmers are now in fact giant corporations, not ma and pa operations. There is no obvious reason why those employers need to be protected from unionization and collective bargaining, according to the Supreme Court. Fraser (Lower Court) (2005) This is not the end of the story about freedom of association and agricultural workers. The remedy in Dunmore consisted of an order for the 13 [1999], 2 S.C.R

12 David J. Doorey government to pass a law that protects agricultural workers right to form and join unions and make collective representations to their employers, free from interference by their employers. The Ontario government responded by passing a statute known as the Agricultural Employees Protection Act, which did precisely as the Supreme Court ordered, and nothing more. It said that agricultural workers have a right to form and join unions and that it is illegal for an employer to threaten or retaliate against workers who exercise these rights. It also said that workers have a right to make collective representations to their employers, but the only obligation on the employer was to listen to those representations. It could then tell the union or workers to get lost. The new statute that applied to agricultural workers did not include a duty to bargain in good faith, which was the requirement of all other employers covered by the Labour Relations Act. The agricultural workers filed a new Charter challenge against the AEPA, a case known as Fraser v. Ontario, sometimes called colloquially Dunmore, Part II. They argued that absent a duty to bargain, the new statute also does not enable agricultural workers to effectively make collective representations to their employers, since employers can and will just tell the workers to get lost. That case reached the lower court of Ontario in 2005, and the judge ruled that the statute conformed with what the Supreme Court had ordered in Dunmore. 14 The workers appealed. Then something unexpected happened. B.C. Health Services (2007) The Supreme Court of Canada released a surprising decision in 2007 known as B.C. Health Services. 15 In this new case, the B.C. government had passed a law that suspended collective bargaining in the health sector, unilaterally imposed new collective agreement terms and cancelled others, and prohibited the right of unions to bargain about some topics, all in an effort, the government claimed, to deal with a crisis of medical costs in the province. The Supreme Court was not impressed with the government s actions. However, if 14 [2006] 79 O.R. (3 rd ) 219 (Ont. Ct. Sup. Ct) 15 Health Services and Support Facilities Subsector Bargaining Association v. B.C. [2007], 2 S.C.R

13 13 the Charter did not protect collective bargaining, then a government would be free to rip up collective agreements and restrict collective bargaining by passing laws like this. How then had the B.C. government violated Section 2(d)? To the general surprise of the labour law community, the Court ruled that it was time to recognize a limited right to collective bargaining under Section 2(d). It turns out that the Court had been wrong back in the PIPSC decision in 1990 when it had ruled that Section 2(d) did not include a right to collective bargaining. Now the Court said that Section 2(d) includes at least an obligation on governments to consult and bargain with unions before passing laws that negatively impact collective bargaining and collective agreements, and to bargain with them. The B.C. government had violated Section 2(d) by ignoring and ripping up collective agreements without consulting with the unions, and its actions were not saved by Section 1 and the government s concerns about cutting costs in the public sector. Significantly, the Court also ruled that Section 2(d) should be interpreted so as to provide at least the same level of protection as do international labour law instruments that Canada has endorsed. That s interesting, because Canada has ratified Convention 87, on Freedom of Association and the Protection of the Right to Organize of the International Labour Organization. That Convention includes a robust right of virtually all workers to engage in collective bargaining, and a right to strike that should not be restricted, except when the public s life, safety, or health would be put at serious risk by a work stoppage. This last statement created a buzz in the labour law community that the Supreme Court will soon revisit its 1987 Labour Trilogy and rule that Section 2(d) does protect some form of a right to strike. If Section 2(d) does include a right to strike, then this may seriously limit the ability of governments to pass back to work legislation, for example, which is a very common response in Canada to public sector strikes. However, as of now, there is still no Charter right to strike. 13

14 David J. Doorey Fraser (Court of Appeal) (2009) Let s return now to Fraser v. Ontario. By the time the case was argued before the Ontario Court of Appeal, B.C. Health Services had been decided. That dramatically changed the legal landscape for the Court of Appeal. Now there was a constitutional right to collective bargaining. The Court of Appeal took that ball and ran with it. It bent over and scooped up a bunch of new sticks from the yard and threw them into the proverbial freedom of association bucket. The Court of Appeal ruled in Fraser that Section 2(d) included: a duty for employers to bargain in good faith; an obligation to protect the majoritism principle built into the Canadian labour law model (the idea that employers have a duty to bargain once a majority of employees in a bargaining unit express their desire for union representation); and some mechanism for resolving bargaining disputes, such as interest arbitration. 16 This decision has been described by one leading scholar as the constitutionalization of the Wagner Model. 17 In other words, it appears to create a Charter right to the key features of the Labour Relations Act. The Court of Appeal decision was appealed to the Supreme Court, which heard argument in 2009, but has not released its decision at the time of writing this paper. The labour law community is eagerly awaiting that decision. Perhaps it will clarify the hodge-podge set of rules that now comprise Section 2(d). Freedom to NOT Associate?: Lavigne (1991), Advance Cutting and Coring (2001) Two final cases are worthy of note, because they raise the question of negative freedom of association the right not to associate. If you have freedom to association, do you not also have the freedom not to associate? Two common practices in labour law have been challenged as amounting to forced association contrary to Section 2(d). The first was Lavigne v. OPSEU, which I mentioned earlier. 18 In that case, an employee of a college was covered by a 16 Fraser v. Ontario (A.G.), (2009) 92 O.R. (3d) 481 (C.A.) 17 B. Langille, The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It, (2009) 54 McGill Law Journal Supra note 2. 14

15 15 collective agreement that required all bargaining unit employees to pay union dues. This is a common collective agreement term in Canada that has legislative support. 19 Lavigne argued that his employer (the government) had violated his freedom of association by agreeing to a contract clause that obliged him to pay union dues, a portion of which were then used by the union to fund some causes with which Lavigne didn t agree, including funding the New Democratic Party. The Supreme Court ruled that the collective agreement clause did not violate the Charter rights of Lavigne, though the judges disagreed on why. Some (4) of the judges ruled that the requirement for Lavigne to pay money towards causes he didn t agree with did violate Section 2(d), but that the violation was saved by Section 1, because unions serve an important function in society in contributing to public debate. Another three judges ruled that Section 2(d) wasn t violated at all, since freedom of association does not include a freedom not to associate. The second case raising the issue of the freedom not to associate was called R. v. Advanced Cutting and Coring Ltd. 20 That case challenged Quebec legislation that required construction workers to join one of five unions. In other words, if you wanted to work in construction in Quebec, you needed to join a union. Did this compulsory unionism violate a freedom not to associate? The judges decided it did not, but as in Lavigne, there was profound disagreement on why. Eight of the nine Supreme Court judges ruled that Section 2(d) does include a right not to associate. Five of the nine judges ruled that that right was violated in this case, but by a score of 5 to 4, the Court ruled ultimately that the violation was saved by Section 1, on the basis that there were important characteristics of the Quebec construction industry that justified the infringement. How s that for confusing? 19 These mandatory dues clauses have been considered legal in Canada for many years, since Justice Rand explained in 1946 that since all unionized workers benefit from the activities of the unions, they should all be required to pay their fair share of the union s costs, even if they are not required to actually join the union. This recommendation was legislated in the form of what we call today the Rand Formula, such as Section 47 of the Ontario Labour Relations Act. 20 [2001] 3 S.C.R

16 David J. Doorey Conclusion on Section 2(d) So, to conclude, where are we on Section 2(d)? It s a big mess, to be honest. I ll try to summarize based only on what the Supreme Court of Canada has said so far (I will not include what the Ontario Court of Appeal said in Fraser, because some or all of that may be overturned at any moment by the Supreme Court): Section 2(d) protects a right to form and join a union, and a limited right to collective bargaining, including a duty on the employer to consult with unions and bargain in good faith When the employer is the government, these rights apply directly, so that a public sector employer cannot interfere with the right to unionize or refuse to engage in collective bargaining Governments have no obligation at all to pass laws to protect private sector employees ability to exercise their freedom of association. However, if a government does pass laws that protect a right of some workers to unionize or engage in collective bargaining, it cannot randomly exclude some workers from those protections if doing so would substantially interfere with the ability of the excluded workers to form or join unions or engage in collective bargaining. Exclusion from a protective labour law model is more likely to substantially interfere with the freedom to associate in the case of vulnerable workers, such as agricultural workers In a case called Delisle v. Canada, [1999] 2 S.C.R. 989, the Court ruled that the exclusion of the R.C.M.P. from the protections in labour legislation does not violate Section 2(d) because, unlike agricultural workers, the police have demonstrated an ability to form strong unions without the aid of protective labour legislation. 16

17 17 There is some form of a right not to associate protected by Section 2(d), but the scope of that right is still unsettled. There is no Charter right to strike. Yet. Are you having fun yet? I told you this is confusing. This is why many academics and lawyers have criticized the courts for their piecemeal approach to developing freedom of association. B. Freedom of Expression (Section 2(b)) The Courts approach to freedom of expression is somewhat easier to understand, at least in terms of figuring out what Section 2(b) includes. This is because, unlike in the case of Section 2(d), the Court has interpreted freedom of expression very broadly. In essence, if something conveys meaning in a nonviolent manner, it has usually been found to fall within the scope of protected expression in Section 2(b). Thus, in an early Charter case called Dolphin Delivery, the Supreme Court ruled that peaceful labour picketing is protected expression under Section 2(b) because it conveys meaning. 22 Most of the fights under freedom of expression take place under Section 1 as the government attempts to justify limitations placed on expression. Under Section 1, the courts in the past considered the fact that some expression most notably, picketing conveys meaning beyond the actual words stated or written on a placard. Courts have noted that picketing has a signaling effect. The Supreme Court wrote in 1999 that labour picketing often causes an automatic reflex response from workers, suppliers, and consumers, which the 22 RWDSU, Local 580 v. Dolphin Delivery, [1986] 2 S.C.R I will focus on picketing in this section of the paper. However, freedom of expression comes up in other aspects of labour law as well. One example was in the Lavigne case discussed above. There the Court ruled that Lavigne s freedom of expression was not infringed when he was forced to pay money towards causes he disagreed with. This is because nothing prevented him from expressing his views on the issues even if they were contrary to the union s views. Forcing someone to pay money to a cause does not mean that the person is being forced to agree with the causes. 17

18 David J. Doorey Court felt discourages some people from making rational choices based on persuasive discourse. 23 In other words, when people see a picket line, what they hear is: don t you dare cross this line. Picketing at or near the premises of the employer during a legal strike or lockout has been given broad protection in our legal model. As long as it is done in a manner that is not itself unlawful (not criminal and not a tort like obstruction ), it is permissible. Picketing at locations other than the employer that is directly involved with the labour dispute is known as secondary picketing. Courts have been less protective of this type of picketing. Secondary picketing makes sense for unions sometimes. For example, picketing a struck employer s suppliers or customers could put pressure on the struck employer to reach a deal with the union. However, courts historically have tried to prevent or at least limit the harm done to third parties to a labor dispute by placing limits on the right to secondary picketing. The tricky part of understanding the legal restrictions on secondary picketing is to note that the main legal restriction in many provinces has been a common law rule, not government legislation. There was a rule made up by judges back in the 1960s that all secondary picketing is illegal, period. 24 That was twenty years before the Charter came into force. But even after the Charter created a constitutional freedom of expression, the rule that all secondary picketing was illegal remained. The problem for unions that wanted to challenge the rule was that it was not a government rule. It was a judge-made rule, and the Supreme Court decided in 1986 that the Charter does not apply to judgemade (common law) rules. 25 How convenient that the judges decided that the Charter does not apply to rules made up by judges! The result was that there was no way for unions to challenge the common law rule that all secondary picketing was illegal (even if legitimate expression was taking place at these secondary sites). 23 Kmart v. UFCW, Local 1288P, [1999] 2 S.C.R Hersees of Woodstock v. Goldstein, [1963] 2 O.R. 81 (C.A.) 25 Dolphin Delivery, supra note. 18

19 19 Then, in a case called Pepsi-Cola Canada in 2002, the Court did something interesting and unexpected. It ruled that, even though the Charter does not apply directly to common law rules, common law rules should nevertheless develop in a manner consistent with Charter values. 26 It decided that the absolute ban on secondary picketing in the common law was inconsistent with the value of freedom of expression we recognize in Canada today. The case involved picketing by striking Pepsi workers at customers of Pepsi. The Court ruled that workers ought to be able to picket at retail stores that sell Pepsi products, as long as the picketing was conducted peacefully and lawfully. As a result, the rule today is that all labour picketing associated with a lawful strike (or lockout) is legal, unless the manner in which it is done is illegal. The two most obvious ways that picketing would become illegal is if it involved violence or threats of violence (which would be a crime), or if the picketers physically obstruct people from crossing the picket line (although there are other ways as well). In the result, as we saw in our discussion of freedom of association, there has been a recent movement by the Supreme Court toward recognizing broader worker rights. This does not mean that limitations cannot be placed on picketing expression. Legislation that restricts peaceful picketing will now likely violate Section 2(b). However, some limitations on the right to expression through picketing will still likely be upheld, or saved under Section 1. For example, in BCGEU v. British Columbia, the Supreme Court ruled that a restriction on picketing in front of courts violated Section 2(b), but was saved by Section 1, because the need to ensure access to justice was pressing and substantial and justified a restriction on expression Pepsi-Cola Canada v. RWDSU, Local 558, (2002) 208 D.L.R. (4 th ) 385 (S.C.C.) 27 [1988] 2 S.C.R

20 David J. Doorey C. Equality Rights (Section 15) 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 1. Enumerated and Analogous Grounds Section 15 sets out fundamental equality rights. Read the language carefully. The words before the first comma [Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination] appear not to depend on what follows afterward. That is because the next phrase, in particular, suggests that the list of grounds that follow are just some examples of the sorts of discrimination that the Section prohibits. In other words, you could read Section 15 as guaranteeing that everyone has a right to equal protection and equal benefit of the law without discrimination, even if the basis for the discrimination is not one of those grounds in the list that follows. However, the courts have not interpreted Section 15 in that manner. Instead, they have taken a more narrow view of equality rights. In general terms, the courts ask whether the state has differentiated among people on the basis of a protected ground in a manner that undermines human dignity. 28 Protected grounds include both enumerated ground (i.e. the grounds listed in Section 15, such as race, colour, sex, et cetera), and analogous grounds. Analogous grounds are those that the court has added to the enumerated list over time on the basis that they reflect a characteristic of a person that is unchangeable (immutable), or at least extremely difficult to change, and deserving of protection. For example, the Supreme Court has added sexual 28 The precise test for Section 15 equality cases is described in the non-labour case Law v. Canada [1999] 1 S.C.R It is a difficult test, and for our purposes here we do not need to analyze it in detail, since Section 15 s influence on labour law has been limited. 20

21 21 orientation 29 and marital status 30 as analogous grounds, which has resulted in those grounds being added to the list of protected grounds in human rights codes across Canada. 2. Section 15 and Individual Employment Law Section 15 has not had a significant impact on the individual employment relationship. Part of the reason is that the Charter does not apply directly to common law rules, and much of Canadian employment law is based in common law rules. So, for example, the Charter does not apply to the manner in which judges decide how much reasonable notice is required to dismiss an employee, or to a decision of a judge finding that an employer had cause to dismiss an employee without notice, or to a ruling that the employer has violated an employment contract in some other manner. Occasionally, employment legislation has been challenged under Section 15. For example, the Supreme Court ruled in a case called Vriend v. Alberta that the Alberta human rights legislation infringed Section 15 because it did not prohibit discrimination in employment on the basis of sexual orientation, an analogous ground guaranteed in Section Also, the rule permitting forced or mandatory retirement of employees 65 or older in some Canadian human rights codes has been challenged as a breach of the Section 15 on the basis of age. 32 In McKinney v. University of Guelph, the Court accepted that human rights laws that permit discrimination against workers 65 or older violated Section 15. However, that infringement was saved in that case by Section Vriend v. Alberta, [1998] 1 S.C.R. 493 [a gay teacher challenged his dismissal from a Catholic school under provincial human rights code, but the case was dismissed because sexual orientation was not a listed ground in the code. He then filed a Charter challenge against the Alberta government for not including sexual orientation in the code. The Supreme Court ruled that sexual orientation was an analogous ground, and ordered the Alberta government to add it to the human rights legislation. 30 The Supreme Court ruled that laws or employment practices by government employers that treat married people differently than non-married people would violate Section 15, since marital status was an analogous ground: Miron v. Trudel, [1995] 2 S.C.R [1998] 1 S.C.R McKinney v. University of Guelph, [1990] 3 S.C.R

22 David J. Doorey The government s pressing objective was to strike a delicate balance between the needs of older workers to receive adequate pensions and incomes against the need to ensure job opportunities for young workers entering the workforce. Note that most Canadian governments have nevertheless moved away from mandatory retirement policies in their human rights legislation in response to an aging labour force and feared labour shortage. 3. Section 15 and Collective Labour Rights Section 15 has also not proven to be terribly important to the area of collective employment relations. Unions have tried to argue that Section 15 equality rights should protect vulnerable workers who have been excluded from protective labour legislation. For example, it was argued in the Dunmore and Fraser cases that the exclusion of agricultural workers from the protections afforded most other workers in the Ontario Labour Relations Act violated Section 15 as well as Section 2(d) freedom of association. The argument was that vulnerable workers should be recognized as an analogous ground. If that were the case, then it would be a breach of Section 15 for a law to treat agricultural workers differently than everyone else. However, courts have consistently found that occupational status is not an analogous ground. 33 Some leading Canadian labour law scholars have criticized the position of the courts that Section 15 does not apply to laws that distinguish amongst occupations. For example, Brian Langille 34 and Diane Pothier 35 have argued that once a government elects to confer labour rights on some employees like a right to collective bargaining or to strike it should be considered a violation of Section 15 for the government to then exclude those same rights from other workers. In other words, they argue that the government doesn t have to grant 33 Fraser v. Ontario, (2006) O.J. No. 45 (Ont. Court of Appeal); B.C. Health Services v. B.C. [2007], 2 S.C.R. 391; Reference re Workers Compensation Act, 1983 (Nfld.) [1989] 1 S.C.R See B. Langille, The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It (2009), 54 McGill Law Journal D. Pothier, Twenty Years of Labour Law and the Charter (2002), 40 Osgoode Hall L.J

23 23 any workers a legal right to strike, but once it elects to create a right to strike, it can t just pick and choose which employees get it. It should be discriminatory (a violation of Section 15) to confer rights on some workers and not others, and the state should be required to justify its decision to exclude only some workers according to the Section 1 standard (the Oakes Test). But, to date, the courts have rejected that argument. Conclusion As you have no doubt concluded, this attempt to simplify the Charter s influence on labour and employment law has proven a challenge. Understanding the Charter requires much study and concentration. Hopefully, I have achieved my objective in some measure. If nothing else, it should be apparent that the Charter is a complex document notwithstanding the simple language it employs. To date, the influence of the Charter on the workplace has been minimal, despite the wealth of decisions and resources spent on Charter litigation. We may be in the middle of a Charter resurgence that will forever redefine workplace law. Then again, maybe not. 23