The Labour Trilogy's Last Rites: B.C. Health and a Constitutional Right to Strike

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Canadian Labour and Employment Law Journal. Volume 15, Number 2 (2009), p. 297-313.


B.C. Health; Collective Bargaining; Constitutional Protection; Constitutional Right To Strike; Dunmore; Labour Trilogy; S. 2(D); Substantial Interference


This paper traces the steps in the denouement of the Supreme Court of Canada's 1987 Labour Trilogy, which denied constitutional protection to collective bargaining and strikes. The first blow to those decisions came in Dunmore, where the Court adopted a collective rather than individual definition of the Charter freedom of association, while another was dealt by B.C Health, where the Court extended s. 2(d) protection to collective bargaining. The Supreme Court might still avoid finding a constitutional right to strike, but, in the author's view the Court has probably gone too far to turn back. If and when the time comes to read the Trilogy its "last rites," the author argues against setting a high threshold for a breach of s. 2(d), by adopting the "substantial interference" test set out in B.C. Health, in this respect, she points to an important difference between collective bargaining and strikes: the former is a positive obligation which imposes on governments a corresponding duty, whereas the latter is a negative entitlement to be free from government interference. While there is a risk that the constitutionalization of strike activity may involve the courts in reviewing labour policy, the solution is not to dilute the content of s. 2(d), but to create a "customized" s. 1 test for justifying infringements of the guarantee in the labour context - one which would explicitly defer to policy decisions by the legislature.

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