Due Process, Collective Bargaining, and S. 2(D) of the Charter: A Comment on B.C. Health Services

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Canadian Labour and Employment Law Journal. Volume 13 (2006), p. 323-363.


Duty to Bargain; Good Faith; Government Interference; Positive Obligation; Right of Access to Collective Bargaining; S. 2(D)


In its recent decision in B.C, Health Services, the Supreme Court of Canada took the monumental step of overruling its own precedents in the Labour Trilogy, by holding that the Charter guarantee of freedom of association does in fact protect a union's right to engage in collective bargaining. The author argues that, while the decision marks a new era for labour relations in Canada, the Court's methodology may have regressive consequences more generally for the interpretation of associational freedom under s. 2(d) of the Charter. She focuses on three aspects of this methodology. First, in constitutionalizing the right of access to a collective bargaining procedure free from "substantial" government interference (but not the outcomes of that procedure), the decision creates a model of due process which could downgrade the entitlement in s. 2(d) from a substantive to a procedural one. Second, while the imposition of a duty on employers to bargain in good faith may appear progressive, recent case law shows that positive rights and obligations can, ironically, be applied restrictively to narrow the scope of fundamental Charter freedoms. Third, by rejecting an abstract view of associational freedom, and favouring instead an approach that is heavily context-dependent, the Court interpreted s. 2(d) in a way which may have little relevance outside the labour relations setting, and which might be used to deny other types of claims. The author points out, however, that in B.C. Health Services the Court did not attempt to develop a new theory of entitlement for the guarantee. For this reason, she urges that the decision be read as one that is limited to the status of collective bargaining under the Charter, and that the Court has left to another day the task of redefining the conceptual foundation of s. 2(d). The paper closes by outlining several issues which must be addressed in any reconsideration of the guarantee.

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