Courts Continue To Define Scope Of Bargaining Rights Protected Under Charter

Edited by Jennifer M. Fantini In recent years, a number of cases have considered the scope of Charter1 rights in the labour relations context. Specifically, courts have attempted to clarify what types of activities are protected under s.2(d) of the Charter, which guarantees the right to freedom of association.

It is now well established that employees have the right to organize as part of the guarantee to freedom of association. However, the right to engage in collective bargaining has only recently been recognized as a Charter right. In the seminal decision of Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia (“Health Services”),2 the Supreme Court of Canada held that section 2(d) of the Charter protects the right of employees and unions to engage, in association, in collective bargaining on fundamental workplace issues.

In the wake of the Health Services decision, courts have attempted to clarify and define how far constitutional protection extends into the collective bargaining process. This issue was recently considered by the Ontario Court of Appeal decision in Association of Justice Counsel v. Canada (Attorney General).3 That case involved a constitutional challenge to legislation that limited compensation increases for federal government employees represented by the Association of Justice Counsel (the “ACJ”).

Shortly after becoming certified as bargaining agent for federal government lawyers, the ACJ began negotiations to conclude a first collective agreement. Salary increases were a key issue during bargaining. However, when the ACJ rejected the government's final offer with respect to salary increases, an impasse was reached and the parties submitted to arbitration. Before the arbitration commenced, the government enacted legislation limiting wage increases to the amounts contained in its final offer.

The ACJ challenged the legislation on the basis that it infringed the union's right to engage in collective bargaining. The lower court agreed...