Recognizing the Charter Value of Employee Freedom of Association at Common Law

Authors

Kevin Banks, Faculty of Law, Queen’s University

Document Type

Article

Abstract

This article systematically explores, for the first time in the published literature, how the development of the common law of employment could advance in light of the Charter values doctrine, focusing on freedom of association. It contends that courts must scrutinize the common law’s impairments of that freedom, and unless they are necessary to similarly important common law values, eliminate them where it is possible to do so within courts’ powers to incrementally change it. A number of such paths are open. If asked to do so, courts probably can and should provide Canadians with a common law of employment that better respects employee freedom of association. Nonetheless, any reconciliation between the common law and freedom of association is likely to remain incomplete for some time, or perhaps indefinitely. Policymakers, seeing the potential for a period of legal uncertainty and the likely persistence of residual but important impairments of freedom of association, should consider legislative reform.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Banks, Kevin. "Recognizing the Charter Value of Employee Freedom of Association at Common Law." Osgoode Hall Law Journal 61.3 (2025) :
DOI: https://doi.org/10.60082/2817-5069.4066
https://digitalcommons.osgoode.yorku.ca/ohlj/vol61/iss3/2

References

1 Faculty of Law, Queen’s University. I would like to thank Sabine Tsuruda, Steven Barrett, participants in the Queen’s Law works in progress workshop, and this Journal’s anonymous reviewers for very helpful comments. I also thank Michael Cui, John Wilkinson, Bennett Morrison, and Mikaela Norkus for excellent research assistance. All errors of course remain mine.

2 See Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 [MPAO]; Meredith v Canada (Attorney General), 2015 SCC 2 [Meredith]; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 [Saskatchewan Federation].

3 See Harry Arthurs, “‘The Right to Golf’: Reflections on the Future of Workers, Unions and the Rest of Us Under the Charter” (1989) 13 Queen’s LJ 17 at 18.

4 See Judy Fudge & Eric Tucker, “The Freedom to Strike in Canada: A Brief Legal History” (2010) 15 CLELJ 333. It describes the expansion of the freedom to strike in Canada legally and in social practice over the last two centuries.

5 See R v Salituro, [1991] 3 SCR 654 [Salituro]; Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 [Hill v Scientology]; RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8 [Pepsi].

6 Pepsi, supra note 5 at para 67.

7 To date, employees and employee associations have preferred to directly challenge the constitutionality of exclusions from labour relations acts, rather than seeking to convince the courts to update the common law. See e.g., International Union of Operating Engineers, Local 793 v Hermanns Contracting Limited, [2017] OLRD No 3669 at paras 126-131 [Hermanns Contracting]; L’Écuyer c Côté, 2013 QCCS 973. It may be that legislative exclusions will eventually be ruled unconstitutional, based on reasoning such as that of the Ontario Labour Relations Board in Hermanns Contracting. But this is not certain. The legal and theoretical bases for attributing state responsibility or accountability in such cases may require clarification. See Tsvi Kahana, “Hybrid State Accountability and Hybrid Rights: Positive Rights, Exclusion, and State Action in Canada” in Tsvi Kahana & Anat Scolnicov, eds, Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (Cambridge University Press, 2016) 173, DOI: https://doi.org/10.1017/CBO9781107588943.009.

8 See e.g., Dunmore v Ontario (Attorney General), 2001 SCC 94 at paras 20-48 [Dunmore]; Ontario (Attorney General) v Fraser, 2011 SCC 20 at para 98 [Fraser].

9 See e.g., Dunmore, supra note 8 at paras 20-48; Hermanns Contracting, supra note 7 at paras 107-130.

10 RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 at 600-603 [Dolphin Delivery]; Pepsi, supra note 5 at paras 17-22.

11 According to Statistics Canada, as of December 2021, about 25% of all employees in Canada are “public sector employees.” This leaves the remaining 75% of employees as either “private sector employees” or “self-employed.” See “Table 14-10-0288-02 Employment by class of worker, monthly, seasonally adjusted (x 1,000)” (last modified 02 February 2022), online: Statistics Canada [perma.cc/W5H8-QRFC].

12 See The Labour Law Casebook Group, Labour and Employment Law: Cases, Materials, and Commentary, 9th ed (Irwin Law, 2018), ch 5 [The Labour Law Casebook Group].

13 See e.g., Ontario Workers’ Union v Humber River Regional Hospital, 2011 CanLII 2715 (ONLRB) at paras 25-33.

14 See McGavin Toastmaster Ltd v Ainscough, [1976] 1 SCR 718 at 727 [Ainscough SCC].

15 See The Labour Law Casebook Group, supra note 12, ch 4:300.

16 Ibid at ch 4:330, noting that “labour relations statutes have traditionally tried to draw a clear line between those who are ‘employees’ and those who exercise ‘managerial functions’….‘Employees’ may bargain collectively under the statute, but managers may not.” The reasons for these exclusions vary. Some are partly or wholly at odds with the purposes of constitutional freedom of association. See David J Doorey, “The Stubborn Persistence of the Lawyer Exemption in Canadian Collective Bargaining Legislation” (2022) 45 Dal LJ 65, DOI: https://doi.org/10.2139/ssrn.3921327. Managerial exclusions operate despite the fact that managers are employees, and regardless of whether they have a meaningful say over their own working conditions or pay and benefits. Considerations leading to the exclusion of managers universally focus instead on the extent of influence they exert over the working conditions of other employees on behalf of the employer. See e.g., Captains and Chiefs Association v Algoma Central Marine, 2010 CIRB 531 at para 8. Of course, as the Court recognizes “a meaningful process of collective bargaining is a process that gives employees…a degree of independence from management sufficient to allow members to control the activities of their association.” See MPAO, supra note 2 at para 99. As a result, it may be constitutionally appropriate, and indeed necessary, for managers seeking to bargain collectively with their employer to do so through an association separate from that of employees below them in their employer’s organizational hierarchy. Under Ontario legislation, the exclusion goes further however, excluding many supervisors from all labour relations act protections based on a requirement of undivided loyalty on the part of first-level managers within an adversarial labour relations model. See e.g., Canadian Union of Public Employees v Children’s Aid Society of Ottawa-Carleton, 2001 CanLII 21300 (ONLRB).

17 For example, Statistics Canada’s 2016 Census Data tables on Occupations indicate that over 1.7 million Canadians worked in various middle management occupations. See Statistics Canada, “2016 Census of Population” (2016), online: [perma.cc/F5HN-C77H]. Statistics Canada’s definitions of managers do not coincide with the definition of employees exercising managerial responsibilities under labour relations laws; therefore, it is likely that a significant fraction of workers who say they are in middle management occupations would be excluded from the coverage of labour relations act protections.

18 C Michael Mitchell & John C Murray, The Changing Workplaces Review – Final Report: An Agenda for Workplace Rights (Ontario Ministry of Labour, 2017), ch 5.3.8; David Doorey, “Why Unions Can’t Organize Retail Workers” (31 October 2013), online: [perma.cc/MY5J-Y54R].

19 MPAO, supra note 2 at paras 54-55.

20 Ibid at paras 69-70.

21 Ibid.

22 Saskatchewan Federation, supra note 2 at para 61.

23 Ibid at paras 54-55.

24 Whether they attach to other categories of persons in relationships of unequal bargaining power is an important question, but due to space constraints, must be left for another day.

25 Of course, not all employees lack bargaining power. See McCormick v Fasken Martineau Dumoulin, 2014 SCC 39, where the Court identified purposes of anti-discrimination statutes somewhat like those the Court attributes to section 2(d) of the Charter that include protection of the disadvantaged (paras 17-18). With such purposes in mind, the Court directed attention to whether the worker in question had an influential say in determining his or her working conditions and financial benefits (para 23).

26 See Canadian Pacific Railway v Zambri, [1962] SCR 609 at 615-17 [Zambri]. Per Justice Cartwright (on behalf of four justices in a nine-justice panel unanimous with respect to the outcome), the Court has had no occasion since to return to delineating common law rights and freedoms to strike. But subsequent lower court decisions have treated strikes by employees as violating implied duties to work. See e.g., Ainscough v McGavin Toastmaster Ltd (1974), 45 DLR (3d) 687 (BCCA) [Ainscough BCCA], and more recently, Anderson v Total Instant Lawns Ltd, 2021 ONSC 2933. Legal scholars have tended to characterize common law rights to strike as freedoms from state interdiction and tort liability rather than as claim rights or immunities exercisable against employers. See Fudge & Tucker, supra note 4 at 337-338, 350.

27 Alan Fox, Beyond Contract: Work, Power and Trust Relations (Faber, 1974) at 181-86.

28 In support of this position per Justice Cartwright writing on behalf of a concurring minority of four justices, see Zambri, supra note 26 at 617. The question of whether a strike amounts to a repudiatory breach was taken up by the Court of Appeal for British Columbia. See Ainscough BCCA, supra note 26. In that case, the majority of justices held that in that case the unlawful strike, while breaching the employment contract, did not amount to a repudiation of it.

29 See Anderson v Total Instant Lawns Ltd, supra note 26. In this case, an employee participating in a collective refusal to report to work in response to an employer’s refusal to pay for hours worked claimed by a fellow employee is treated as repudiation. See also Roden v Toronto Humane Society (2005), 259 DLR (4th) 89 (ONCA).

30 Ainscough SCC, supra note 14 at 723-727.

31 Wallace v United Grain Growers Ltd, [1997] 3 SCR 701 at paras 91-92 [Wallace].

32 See GasTOPS Ltd v Forsyth, 2009 CanLII 66153 (ONSC) at para 90. The case states that “[f]ailure of an employee to provide adequate notice will entitle the employer to an award of damages. Generally, reasonable notice is meant to give the employer time to hire and train a replacement,” which is affirmed by GasTOPS Ltd v Forsyth, 2012 ONCA 134.

33 See e.g., RBC Dominion Securities Inc v Merrill Lynch Canada Inc, 2008 SCC 54 at paras 10-12.

34 See Agribrands Purina Canada Inc v Kasamekas, 2011 ONCA 460 at para 37.

35 Ibid at para 26.

36 For a current definition of the tort, see Correia v Canac Kitchens, 2008 ONCA 506 at para 99 [Correia]. The Court of Appeal for Ontario endorsed the proposition that the elements of the tort are that: “(1) the defendant had knowledge of the contract between the plaintiff and the third party; (2) the defendant’s conduct was intended to cause the third party to breach the contract; (3) the defendant’s conduct caused the third party to breach the contract; (4) the plaintiff suffered damage as a result of the breach.” Conduct inducing a breach can be no more than simple persuasion. See Doubleview Capital Corp v Day, 2016 BCSC 231 at paras 50, 57-63 [Doubleview] (moral suasion of employees to cease work in breach of employment contracts amounting to inducing breach of contract).

37 See Doubleview, supra note 36 at paras 59-62, and accompanying text. The court notes that

[w]hile courts have imposed a requirement that the means used to procure the indirect breach are independently unlawful, that requirement is met by demonstrating that the actions in question constituted direct inducement of breach of contract as between the defendants and the party who breaks its contract with the plaintiff.

38 See Christie v The York Corporation, 1939 CanLII 39 (SCC) at 142.

39 Wallace, supra note 31 at paras 75-76.

40 See Stacey Reginald Ball, Canadian Employment Law (Carswell, 1996), ch 9:17. Ball states

[t]he employee’s length of service is an important factor in the determination of reasonable notice. By giving very significant weight to the employee’s length of service in the calculation of reasonable notice, common law jurists have implicitly recognized a limited proprietary right to one’s employment which grows the longer one has been employed.

For detailed charts with reasonable notice decisions on the employee’s length of service, see ibid, ch 9:93-9:112.

41 See Machtinger v HOJ Industries Ltd, 1992 CanLII 102 (SCC) at 997-1002 [Machtinger].

42 See Kevin Banks, “Progress and Paradox: The Remarkable Yet Limited Advance of Employer Good Faith Duties in Canadian Common Law” (2011) 32 Comp Lab L & Pol’y J 547 [Banks, “Good Faith”].

43 See Robert J Sharpe, Injunctions and Specific Performance, 4th ed (Thomson Reuters, 2012), ch 2.415.2, citing Beaverbrook Newspapers Ltd v Keys, [1978] ICR 582 (CA). When discussing the factors relevant to the granting of an interlocutory injunction, it stated:

The means of the defendant is an important, but not decisive, factor. The courts have recognized that allowing the decision to grant an interlocutory injunction to turn on the wealth of either party could operate unjustly. It has been accepted, for example, that the inability of individual trade union members, named as defendants, to satisfy a damage award should not invariably result in an injunction being granted against them.

See also Carbo Ceramics Inc v China Ceramic Proppant Ltd, 2004 FCA 283 at para 11; Maple Leaf Foods Inc v Butler, 2002 MBQB 82 at para 22.

44 Bernard Adell, “Regulating Strikes in Essential (and Other) Services after the ‘New Trilogy’” (2013) 17 CLELJ 413 at 431 [Adell, “Essential Services”].

45 Dunmore, supra note 8 at para 22.

46 See ibid at para 20. Labour relations statutes in Canada universally provide, expressly or by implication, that no employer may discriminate against an employee covered by the statute for organizing, bargaining collectively, or striking, and that no such employee ceases to be an employee simply by virtue of striking. See George W Adams, Canadian Labour Law, 2nd ed (Carswell, 1993), ch 11:24. These protections make it unlawful to permanently replace striking employees. See United Cement, Lime and Gypsum Workers International Union v Westroc Industries Limited, 1981 CanLII 1034 (ONLRB) at para 19. These protections also make it unlawful to retain replacement workers in preference to strikers after a strike without a legitimate business purpose untainted by any animus against strikers or their union for doing so. See United Food & Commercial Workers Canada, Local 175 v WHL Management Limited Partnership, 2014 CanLII 76990 (ONLRB) at para 103. Subject to restrictions on timing, labour relations statutes treat strikes in support of collective bargaining as lawful activities of trade unions, effectively immunizing unions and employees against tort liability for such actions. See Adams, supra note 46, ch 11:4. Labour law thus displaces the features of the common law that impair freedom of association, for the purpose of securing it.

47 See International Labour Organization, “Freedom of Association and Protection of the Right to Organise Convention, 1984 (No. 87)” (4 July 1950), art 8.2, online: [perma.cc/MSH6-FBZ5] [Convention 87]; International Labour Organization, “Right to Organise and Collective Bargaining Convention, 1949 (No. 98)” (4 July 1950), arts 1-2, online: www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C098 [perma.cc/9G75-TTE2] [Convention 98].

48 See Convention 87, supra note 47, art 8.2. It requires that the law of the land “shall not be such as to impair” the exercise of those rights. This implies that the law should not empower private actors to undermine them. See Convention 98, supra note 47, art 1-2. It provides in Article 1 that “[w]orkers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment,” and in Article 2 that

[s]uch protection shall apply more particularly in respect of acts calculated to: (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours.

49 See International Labour Organization, Freedom of Association: Compilation of Decisions of the Committee on Freedom of Association, 6th ed (International Labour Office Geneva, 2018) at paras 959-960; International Labour Conference, Giving Globalization a Human Face: General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008 (International Labour Office Geneva, 2012) at para 152.

50 See Kevin Banks, “The Role and Promise of International Law in Canada’s New Labour Law Constitutionalism” (2012) 16 CLELJ 233 at 255-257.

51 Saskatchewan Federation, supra note 2 at paras 67-69.

52 See Banks, “Good Faith,” supra note 42.

53 Dolphin Delivery, supra note 10 at paras 39-40; Hill v Scientology, supra note 5 at paras 92, 97, 100.

54 Dolphin Delivery, supra note 10 at para 39.

55 Hill v Scientology, supra note 5 paras 92, 97, 100.

56 Pepsi, supra note 5 at para 18.

57 Ibid at para 20.

58 2009 SCC 61 at para 41 [Grant]. The Court framed the “fundamental question” as “whether traditional defences for defamatory statements curtail freedom of expression in a way that is inconsistent with Canadian constitutional values.” It then explained the centrality of political discourse to the rationales for Charter freedom of expression, and that the currently available defences to libel and slander actions operated in ways that were often of little value to media that had made responsible and reasonable efforts to ascertain the truth of information on matters of public interest that they published (paras 47-53). The Court concluded that it was “beyond debate that the limited defences available…may have the effect of inhibiting political discourse and debate on matters of public importance,” something that the Court had earlier described as a “chilling effect” (para 57).

59 Jones v Tsige, 2012 ONCA 32 at paras 46, 68-9 [Jones].

60 Hill v Scientology, supra note 5 at para 100.

61 Pepsi, supra note 5 at para 67.

62 Ibid at paras 72-3, 87-92.

63 Ibid at paras 90-92.

64 Ibid at para 92.

65 Ibid at paras 75-76.

66 Grant, supra note 58 at para 61.

67 Ibid at para 62.

68 See Hill v Scientology, supra note 5 at para 91. The Court described the power to modify the common law to address inconsistencies with Charter values as “simply a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values.”

69 See Salituro, supra note 5 at 667-670. The case discusses the decision of Justice McLachlin in Watkins v Olafson, 1989 CanLII 36 (SCC) at 760 [Watkins]. It describes the process of changing the common law as a “slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances.” It concludes that while judges

can and should adapt the common law to reflect the changing social, moral and economic fabric of the country…[and] should not be quick to perpetuate rules whose social foundation has long since disappeared…changes to the law which may have complex ramifications…should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

See also Hill v Scientology, supra note 5. The case reiterates substantially the same approach.

70 Ibid.

71 Pepsi, supra note 5 at para 16.

72 Ibid at paras 24-25.

73 Ibid at para 25.

74 Ibid at para 17.

75 Ibid at para 85.

76 See Dolphin Delivery, supra note 10 at 595-97. The Court echoed these concerns, which were first articulated in this case. Specifically, a cause of action based directly on Charter rights might form “an entirely new system of civil liability in competition with the dispute resolution mechanisms” created by legislatures such as human rights tribunals.

77 Jones, supra note 59 at paras 45-54.

78 Grant, supra note 58 at para 46, citing Salituro, supra note 5 at 670.

79 Grant, supra note 58 at para 46.

80 Salituro, supra note 5 at 667-68.

81 Watkins, supra note 69 at 761-64.

82 Ibid at 762-64.

83 See Bernard Adell, “Secondary Picketing after Pepsi-Cola: What’s Clear, and What Isn’t?” (2003) 10 CLELJ 135 at 141-47.

84 Grant, supra note 58 at paras 98-126.

85 Dunmore, supra note 8 at para 20.

86 The Court’s approach to developing the common law consistently with the Charter has been criticized, rightly in my view, for its reliance on an undefined concept of “values.” Scholars have pointed out that the Charter values given weight in Court decisions have included not only the capacity to exercise Charter rights, but also broad values like equality and liberty that are not enshrined without qualification as rights, and values that lie beyond the text of the Charter. See Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 16 SCLR 67, DOI: . Such values, considered as underlying rights, may assist in determining whether an impairment affects the core of a right or a relatively insignificant exercise which can be justifiably limited to prevent harm to other significant values or interests. On the other hand, where broadly worded values refer to capacities to act or immunities that lie beyond the scope of Charter rights, the weight that should be attached to them in developing the common law becomes less clear. This in turn undermines the predictability of the law’s development.

87 Pepsi, supra note 5 at para 72.

88 Ibid at paras 44-45.

89 Ibid.

90 See Fox, supra note 27 at 181-84.

91 See e.g., Stein v British Columbia Housing Management Commission, 1992 CanLII 4032 (BCCA) at 185.

92 See e.g., Larocque v Louis Bull Tribe, 2006 CarswellNat 1130 at para 19. The case states that “one ground for refusing reinstatement is damage to or the disappearance of a relationship of trust and confidence between employer and employee. The common law is clear that an employee has a duty of fidelity to his or her employer and that breach of the duty is cause for dismissal.”

93 Morgan v Fry, [1968] 3 All ER 452 at 458.

94 See Geoffrey England, “Recent Developments in the Law of the Employment Contract: Continuing Tension between the Rights Paradigm and the Efficiency Paradigm” (1995) 20 Queen’s LJ 557.

95 Toke Aidt & Zafiris Tzannatos, Unions and Collective Bargaining: Economic Effects in a Global Environment (World Bank, 2002), DOI: https://doi.org/10.1596/0-8213-5080-3; William Lazonick, Competitive Advantage on the Shop Floor (Harvard University Press, 1990); Wolfgang Streek, Social Institutions and Economic Performance: Studies of Industrial Relations in Advanced Capitalist Economies (SAGE, 1992); Lowell Turner, Democracy at Work: Changing World Markets and the Future of Labor Unions (Cornell University Press, 1991).

96 England, supra note 94.

97 See David Levine, “Just-Cause Employment Policies in the Presence of Worker Adverse Selection” (1991) 9 J Lab Econ 294, DOI: https://doi.org/10.1086/298270; Michèle Belot, Jan Boone & Jan van Ours, “Welfare-Improving Employment Protection” (2007) 74 Economica 381, DOI: https://doi.org/10.1111/j.1468-0335.2006.00576.x.

98 See The Labour Law Casebook Group, supra note 12, ch 7:200; Royal Oak Mines Inc v Canada (Labour Relations Board), 1996 CanLII 220 (SCC).

99 See Seneca College v Bhadauria, 1981 CanLII 29 (SCC) at 188; Dolphin Delivery, supra note 10 at 589, 593, 597.

100 Jones, supra note 59 at para 15.

101 Ibid at para 66.

102 Ibid at paras 55-65.

103 Ibid at para 24.

104 Ibid at para 66.

105 See AI Enterprises Ltd v Bram Enterprises Ltd, 2014 SCC 12 at paras 65-68 [AI Enterprises]. The case states that “[i]ntimidation is committed when the defendant threatens to commit an unlawful act and in so doing causes loss to the person threatened (two-party intimidation) or to a third party (three-party intimidation).”

106 See Torquay Hotel Co Ltd v Cousins and Others, [1969] 2 Ch 106 (CA); Drouillard v Cogeco Cable Inc, 2007 ONCA 322.

107 AI Enterprises, supra note 105 at para 45.

108 See Nevsun Resources Ltd v Araya, 2020 SCC 5 [Nevsun].

109 See e.g., James Brudney, “The Right to Strike as Customary International Law” (2021) 46 Yale J Intl L 1.

110 Nevsun, supra note 108 at para 69. Importantly, the Nevsun decision was a ruling on a motion to strike the claim. Thus, while the Court allowed the claim to proceed based on customary international law, this was only because Nevsun did not establish that the claims had “no reasonable likelihood of success.” This is very different than the Court conclusively finding a new tort based on customary international law.

111 978011 Ontario Ltd v Cornell Engineering Company Ltd, 2001 CanLII 8522 (ONCA) at para 32 [Cornell]. See also Martel Building Ltd v Canada, 2000 SCC 60 at para 73; Nicholas Reynolds, “The New Neighbour Principle: Reasonable Expectations, Relationality, and Good Faith in Pre-Contractual Negotiations” (2017) 60 Can Bus LJ 94.

112 Cornell, supra note 111 at para 34.

113 Canadian Pacific Hotels Ltd v Bank of Montreal, 1987 CanLII 55 (SCC) at 762.

114 Ibid at 769-70, 775-77.

115 See Bhasin v Hrynew, 2014 SCC 71 at para 44, citing London Drugs Ltd v Kuehne & Nagel International Ltd, 1992 CanLII 41 (SCC) at 457; Machtinger, supra note 41.

116 Adams, supra note 46, ch 10:5-10:7.

117 See Wallace, supra note 31 at para 92, citing Katherine Swinton, “Contract Law and the Employment Relationship: The Proper Forum for Reform” in Barry Reiter & John Swan, eds, Studies in Contract Law (Butterworths, 1980) 357 at 363. In particular, “[i]ndividual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions than those offered by the employer.”

118 Tercon Contractors Ltd v British Columbia (Transportation and Highways), 2010 SCC 4 at paras 116-18.

119 Ibid at para 117, citing In Re Estate of Charles Millar, Deceased, 1937 CanLII 10 (SCC) at 7.

120 The category of contracts including servile incidents is a narrow one essentially prohibiting contracting into servitude. See Archer v Society of the Sacred Heart of Jesus [1905] OJ No 141 (ONCA) at para 74. Canadian courts have found six types of contracts to be unenforceable for being contrary to public policy: (1) contracts affecting marriage; (2) contracts injurious to the state; (3) contracts in restraint of trade; (4) contracts injurious to the justice system; (5) contracts involving immorality; (6) contracts including servile incidents. See Brandon Kain & Douglas Yoshida, “The Doctrine of Public Policy in Canadian Contract Law” in Todd Archibald & Randall Echlin, eds, Annual Review of Civil Litigation 2007 (Thomson Carswell, 2007) at 18-20; and regarding the doctrine of servile incidents, see Archer v Society of the Sacred Heart of Jesus, ibid. Contracts injurious to the state are irrelevant for our purposes. This head of public policy voids contracts such as agreements with enemy states during a period of war or agreements with public officials that will directly affect their public duties. Contracts injurious to the justice system are in general terms those that make it impossible to enforce legal rights. It is not applicable here because the Charter is not directly enforceable between private parties. I disagree with Kain & Yoshida that discriminatory covenants can be assimilated into the category of contracts involving immorality. Judicial decisions on discriminatory covenants make no mention of immorality, and decisions that do explicitly discuss immorality have applied standards of sexual morality, most of which are now anachronistic. See Kain & Yoshida, ibid at 24-26.

121 See e.g., Pearce v 4 Pillars Consulting Group Inc, 2021 BCCA 198 at paras 214-15.

122 See Salituro, supra note 5 at 675. The Charter plays a “central role in defining the legal and social fabric of the country.” Therefore, it “must thus be viewed as one of the guiding instruments in the development of Canadian law.” See Pepsi, supra note 5 at para 18.

123 See Kevin Banks, Roberta Nunin & Adriana Topo, “The lasting influence of legal origins: Workplace discrimination, social inclusion and the law in Canada, the United States and the European Union” in Matthew W Finkin & Guy Mundlak, eds, Comparative Labour Law (Edward Elgar Publishing, 2015) 220, DOI: https://doi.org/10.4337/9781781000137.00015.

124 See Kain & Yoshida, supra note 120 at 44-45; Stephen A Smith, “Future Freedom and Freedom of Contract” (1996) 59 Mod L Rev 167, DOI: https://doi.org/10.1111/j.1468-2230.1996.tb02073.x.

125 In Douez v Facebook, 2017 SCC 33 at para 99, Justice Abella remarked in her concurring opinion that in the case of a consumer contract of adhesion with no opportunity to negotiate, the automatic nature of the commitments should intensify the scrutiny given to contract terms under the public policy doctrine. She went on to add that the public policy concerns in question were “especially significant” given that the Court was dealing with “a fundamental right like privacy” (para 105). More recently, see Uber Technologies Inc v Heller, 2020 SCC 16 at para 112. In this case, Justice Brown noted that one reason for treating contract clauses that render the enforcement of a contract impossible as contrary to public policy is that

unless everyone has reasonable access to the law and its processes where necessary to vindicate legal rights, we will live in a society where the strong and well-resourced will always prevail over the weak. Or, as Frederick Wilmot-Smith puts it, “[l]egal structures that make enforcement of the law practically impossible will leave weaker members of society open to exploitation at the hands of, for example, unscrupulous employers or spouses.”

126 Canada Trust Co v Ontario Human Rights Commission (CA), 1990 CanLII 6849 (ONCA) at para 40 [Canada Trust].

127 Ibid at para 102.

128 See Ramsden (Estate of), 1996 CanLII 3709 (PESCTD) at para 13 [Ramsden Estate]. It held that only blatant forms of discrimination such as religious supremacy or racism would attract the application of public policy doctrine.

129 See Fox v Fox Estate, 1996 CanLII 779 (ONCA) [Fox Estate]; Peach Estate (Re), 2009 NSSC 383 at para 18 [Peach Estate]; McCorkill v Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased, 2014 NBQB 148 at para 62 [McCorkill]; Re The Esther G Castanera Scholarship Fund, 2015 MBQB 28 at para 29 [Castanera]; Spence v BMO Trust Company, 2016 ONCA 196 at para 71 [Spence].

130 See Royal Trust Corp of Canada v University of Western Ontario, 2016 ONSC 1143 at para 12 [University of Western Ontario]; University of Victoria Foundation v British Columbia (Attorney General), 2000 BCSC 445 at para 23 [University of Victoria].

131 Canada Trust was decided before the Court had begun to develop the Charter values doctrine concretely in Salituro. See Canada Trust, supra note 126; Salituro, supra note 5.

132 See Fox Estate, supra note 129; Peach Estate, supra note 129; Castanera, supra note 129; Spence, supra note 129; University of Western Ontario, supra note 130; University of Victoria, supra note 130. See also McCorkill, supra note 129. In this case, the court declared a bequest void because it would go to a white supremacist organization.

133 Canada Trust, supra note 126. Justice Tarnopolsky offered a detailed explanation for his conclusions that discriminatory dispositions in charitable trusts would violate public policy, reasoning that the Court had already acknowledged that the Human Rights Code recognized and stated public policy in Ontario, that further evidence of public policy against discrimination could be found in other statutes and in the enshrinement of equality rights in the Charter, that the law should lend its aid to forces of social cohesion, and that the world community had made anti-discrimination a matter of public policy in international conventions.

134 Fox Estate, supra note 129 at para 17. Justice Galligan stated that, just as a court would not uphold a condition in a will disinheriting a beneficiary if he or she married outside of a particular religious faith, public policy should prevent a trustee from exercising her discretion in a fashion which discriminates on racial or religious grounds. This case involved a private family trust, not a charitable one. While neither concurring opinion applied this proposition, neither took issue with it either. Spence, supra note 129 at paras 78-81. In this case, the Ontario Court of Appeal accepted and explained Justice Galligan’s ruling, stating that public policy doctrines apply to a trustee’s exercise of discretion because it is subject to court supervision, unlike an unconditional gift in a will.

135 Spence, supra note 129.

136 Ibid at paras 54-57. The court distinguished unconditional grants from conditional grants and private trusts. The court’s discussion of rules against conditional grants implied that, but for the fact that the grant at issue was unconditional, public policy regarding discriminatory dispositions would have applied in similar fashion. The court begins this discussion by asking whether public policy applies to the disposition, then notes that the fact that it contains no condition is significant, and finally discusses why conditional grants attract the public policy doctrine.

137 Ibid at para 56.

138 Ibid at para 55.

139 Ibid at paras 57, 71. To justify its conclusion that public policy doctrine did not apply to an unconditional grant in a will even if it were blatantly racist, the court stated that such a grant does not oblige beneficiaries to act contrary to public policy in order to inherit or require trustees to engage in discriminatory conduct in order to implement the testator’s intentions. The court also noted that an unconditional grant requires no exercise of discretionary authority by the trustee subject to court supervision (para 84). In a concurring opinion adopting and supplementing the opinion of the majority, Justice Lauwers added that in probating a will, the question is simply “whether the will itself is formally valid, the testator was of sound mind, and the will was not made in suspicious circumstances,” and that the court “neither condones nor approves of particular bequests” (para 129).

140 Salituro, supra note 5 at 675.

141 Pepsi, supra note 5 at para 18.

142 For example, anti-discrimination law’s prohibition on discrimination against religion, marital status, and family status protects capacities to choose one’s faith, to marry, and to assume and meet family obligations. See Russel W Zinn, The Law of Human Rights in Canada: Practice and Procedure (Thomson Reuters, 2021), ch 7.

143 See Dagenais v Canadian Broadcasting Corp, 1994 CanLII 39 (SCC) at 877. The case states that “a hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law.”

144 In contract law, liability or continued access to rights and benefits depends on compliance with contract terms. Like a conditional grant, such a clause could call upon a court to justify enforcement on the basis of an application of terms and conditions impairing fundamental rights.

145 See Ball, supra note 40, ch 8:5-8:6. Ball notes that “the purpose of the employer’s right to notice is to allow the employer to find another employee.” This in turn limits employer vulnerability to sudden disruption of production and consequent losses of business or assets. If these purposes are sufficient to meet the necessity test for implication of terms with respect to resignation, they might, with appropriate modification in light of the Charter values reflected in the right to strike, justify a brief implied notice period for strike action by allowing employers to prepare, in advance, for strike action.

146 Potter v New Brunswick, 2015 SCC 10 at para 84.

147 Ibid at paras 83-84.

148 Honda Canada Inc v Keays, 2008 SCC 39 at para 59.

149 See Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 at para 94.

150 Ibid at para 92. The Court reasoned that recognizing such duties interferes very little with freedom of contract because, among other things, parties will rarely expect that their contract permits dishonest performance or that discretion granted by the contract may be exercised in a manner unconnected to the purposes for which it was conferred.

151 Banks, “Good Faith,” supra note 42 at 563.

152 Canadian labour law and common law have both long recognized that work slowdowns can be considered strikes. See Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen and Others (No 2), [1972] All ER 949 (CA) at 6, 10-12; CWC v Graham Cable TV/FM, 1985 CarswellNat 761 at paras 20-21, 26.

153 Hoekstra v Rehability Occupational Therapy Inc, 2019 ONSC 562 at paras 27-29.

154 Ibid.

155 See SEIU, Local 204 v Kennedy Lodge Nursing Home, 1980 CarswellOnt 1075 at para 22.

156 See e.g., Canada Post Corp v CUPW, 1992 CarswellNat 1000.

157 See Banks, “Good Faith,” supra note 42 at 558.

158 See Fraser, supra note 8 at para 104.

159 See Bernard Adell, Michel Grant & Allen Ponak, Strikes in Essential Services (IRC Press, 2001) at 65-66.

160 See MPAO, supra note 2 at paras 107-10.

161 Saskatchewan Federation, supra note 2 at para 84, citing Justice Dickson in the Reference re Public Service Employee Relations Act (Alta), 1987 CanLII 88 (SCC) at 374-75. For further guidance on the interpretation and application of the definition of essential services, see Saskatchewan Federation, supra note 2 at paras 84-86, and sources cited therein.

162 See Adell, “Essential Services,” supra note 44.

163 Ibid at 418-419.

164 Pepsi, supra note 5 at paras 17, 24-25.

165 Saskatchewan Federation, supra note 2 at para 1.

166 For a discussion of both reasons underlying this reluctance and reasons to revisit it, see Geoffrey England, Peter Barnacle & Innis Christie, “Chapter 16: Common Law Remedies for Wrongful Dismissal” in Employment Law in Canada, 4th ed (LexisNexis Canada, 2005), ss 16(6)-(8).

167 See generally, The Labour Law Casebook Group, supra note 12, ch 5:700-5:730.

168 See David J Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2013) 38 Queen’s LJ 511; Brishen Rogers & Simon Archer, “Protecting Concerted Action Outside the Union Context” (2017) 20 CLELJ 141.