McGill Law Journal ~ Revue de droit de McGill
I WILL NOT GIVE YOU A PENNY MORE THAN YOU
DESERVE:* ONTARIO V. FRASER AND THE
(UNCERTAIN) RIGHT TO COLLECTIVELY
BARGAIN IN CANADA
Alison Braley **
This case comment first reviews the juris-
prudence that most directly informed the Su-
preme Courts ruling in Health Services. Second,
this case comment applies the logic underpin-
ning Health Services to the facts of the case at
bar. The general argument is that Ontario v.
Fraser represents an inconsistent application of
two concepts that are central to the understand-
ing of collective bargaining that the SCC had
elucidated in Health Services: the meaning of
good faith and substantial interference. The
comment concludes that Ontario v. Fraser has
narrowed the right to collectively bargain to a
greater degree than both proponents and oppo-
nents of Health Services might have anticipat-
ed.
Ce commentaire darrt fait dabord tat
de la jurisprudence ayant directement inform
la Cour suprme dans sa dcision Health Ser-
vices. Ensuite, ce commentaire darrt applique
la logique sous-jacente de Health Services aux
faits en lespce. Largument gnral est que
larrt Ontario c. Fraser reprsente une applica-
tion incohrente de deux concepts centraux,
pour la comprhension du droit la ngociation
collective, que la CSC a lucids dans Health
Services : le sens des concepts de bonne foi et
d entraves substantielles . Ce commentaire
conclut que larrt Ontario c. Fraser limite le
droit la ngociation collective un tel degr
que tant les dfenseurs que les opposants de
larrt Health Services nauraient pu lanticiper.
* Josh Finlayson & Andy Maize, A Penny More recorded by The Skydiggers, from the
album Restless, (Toronto: FRE Records, 1992).
** The author is a PhD candidate, in the department of Political Science at the University
of Western Ontario, completing her dissertation on childrens moral rights. She has a
publication forthcoming in the Canadian Journal of Political Science entitled Religious
Rights and Quebecs Ethics and Religious Culture Course.
Citation: (2011) 57:2 McGill LJ 351 ~ Rfrence : (2010) 57 : 2 RD McGill 351
Alison Braley 2011
352 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
Relevant Jurisprudence and Developments
A. Dunmore
B. The Agricultural Employees Protection Act (AEPA)
C. The AEPA at Trial
D. Health Services
1. The Right to a Meaningful Process
II. Ontario v. Fraser
A. Analysis
1. The Wagner Model of Collective Bargaining
2. The Two Senses of Good Faith
3. The Tribunal
4. Substantial Interference
Conclusion
353
355
355
356
357
359
360
361
362
362
365
369
371
373
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 353
Introduction
On 29 April 2011, the Supreme Court of Canada (SCC) released its
much-anticipated decision in Ontario (Attorney General) v. Fraser.1 This
decision held that the labour regime for agricultural workers in Ontario
as set out in the Agricultural Employees Protection Act2 is constitutional.
The Fraser decision had the effect of overturning an Ontario Court of Ap-
peal (OCA) ruling that had held that the AEPA was unconstitutional. The
reason for the OCAs decision was that the AEPA did not extend to agri-
cultural workers an adequate scheme for collective bargaining, a conclu-
sion with which the SCC disagreed.
Unsurprisingly, employer groups are encouraged by Fraser, particu-
larly the Ontario Federation of Agriculture (OFA), which enjoyed inter-
vener status at early trial stages.3 So too is the Government of Ontario.4
The labour community, by contrast, is shocked5 by the decision. Stan
Raper of United Food and Commercial Workers Canada (UFCW) referred
to the decision as less worthy than fertilizer.6 It is arguable that one
point upon which the employer and labour groups agree, however, is that
this particular outcome was unanticipated. That is because the SCCs
landmark decision in Health Services,7 which provided a level of constitu-
tional protection for collective bargaining, had seemingly changed the
landscape of labour relations. Commentators claimed that the Health
Services decision represented an about-face8 and a new era of dialogue
1 2011 SCC 20, [2011] 2 SCR 3 [Fraser].
2 Agricultural Employees Protection Act, SO 2002, c 16 [AEPA].
3 See Mark Wales, Supreme Court Ruling is Good for Farming (6 May 2011), online:
Northumberland View
4 Although the legislation was brought in by the Progressive Conservative government,
the Liberal government, under Premier Dalton McGuinty, chose to challenge the Ontar-
io Court of Appeal decision to strike it down.
5 Ont. Farm Workers Shocked as Union Ban Upheld, CBC News (30 April 2011),
online: CBC News
6 Ibid.
7 Health Services and SupportFacilities Subsector Bargaining Assn v British Colum-
bia, 2007 SCC 27, [2007] 2 SCR 391 [Health Services].
8 Judy Fudge, The Supreme Court of Canada and the Right to Bargain Collectively: The
Implications of the Health Services and Support Case in Canada and Beyond, online:
(2008) 37:1 Indus LJ 25 at 25
Supreme Court Boldly Affirms Labour Rights, online: (2007) 54:9 CAUT/ACPPU Bul-
letin Online
354 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
with regard to labour rights.9 Not all observers felt that this about-face
was agreeable. Some felt that the decision was arbitrary and would ulti-
mately lead the Canadian constitutional regime into a black hole of the
SCCs own making.10 On the whole, however, commentators agreed that,
for good or ill, Health Services altered the discourse of labour relations in
this country, even while uncertainty loomed over how much protection
workers had actually gained from it.11 The decision in Fraser, however,
reveals a lesser level of protection for collective bargaining than support-
ers of the Health Services decision seemed to anticipate, cautiously opti-
mistic as they were, and certainly less than the prognostications of its de-
tractors.
Despite diverging views regarding whether or not the decision in Fra-
ser is ultimately correct, many employer and labour groups agree that this
result represents a back-pedalling from the SCCs ruling in Health Ser-
vices. At least one observer has called the Fraser decision a significant re-
thinking of recent developments in Canadian labour and constitutional
law that opens the door to an ultimate reversal of Health Services.12 In its
judgment, the SCC rejects the characterization that Fraser represents a
retreat from its decision in Health Services. Others agree with the SCC,
claiming that this decision represents the usual foot shuffling and clarifi-
cation that takes place after the Courts jurisprudence has taken a signifi-
cant step in any particular direction.13
By contrast, I believe that this decision does represent a significant
back-pedalling principally because the Fraser decision is largely incoher-
ent and has offered little in the way of clarification of what the right to
bargain collectively entails. I will demonstrate that the SCCs assessment
of the collective bargaining provisions in the AEPA is inconsistent with its
assessment of what constituted a meaningful (and thereby constitutional)
collective bargaining regime in Health Services. The SCCs inconsistent
assessment reveals itself in two ways. First, the SCC applied different
9 See Ken Norman, Whats Right Is Right: The Supreme Court Gets It, online: (2008)
12 Just Labour: A Canadian Journal of Work and Society 16 at 16
10 See Geoff Plant, Charter of Rights divides rather than unites Canadians, The Lawyers
Weekly (17 August 2007), online: The Lawyers Weekly
11 See Fudge, supra note 8 at 40; Jakki Warkentin, Health Services: Time to Celebrate?,
The Court (21 June 2007), online: The Court
12 Heenan Blaikie Labour Group, Ontario v. FraserThe Supreme Court of Canada Sig-
nificantly Narrows the Scope of the Constitutional Protection of Collective Bargaining
(April 2011), online: Heenan Blaikie
13 Christopher Hunter, Defining the MeaningfulCollective Bargaining and Freedom of
Association (Ontario (Attorney General) v. Fraser) Part I, The Court (15 September
2011), online: The Court
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 355
standards to the term good faith in Fraser than it did in Health Services.
Second, the SCC misapplied the substantial interference test elucidated
in Health Services to the facts of the case in Fraser. Despite the optimistic
predictions from some corners in the wake of Health Services regarding
the future of collective bargaining in Canada, Fraser pays little more than
lip service to the collective bargaining rights that the SCC had supported
just a few years earlier.
I. Relevant Jurisprudence and Developments
A. Dunmore
Ontarios agricultural workers have been consistently excluded from
the protective provisions enacted in the Ontario Labour Relations Act,14
except for a time in the early 1990s. In 1995, the Labour Relations and
Employment Statute Law Amendment Act15 was introduced. This legisla-
tion once again excluded agricultural workers from a labour regime that
protected any right to form a union and to bargain collectively.16 Subse-
quently, the LRESLAA was challenged under section 2(d) of the Charter.17
The establishment of an affirmative right to unionize and to bargain
collectively has a recent history whose provenance is Dunmore18 in 2001.
In Dunmore, the SCC held that a right to associate included the right to
join a union.19 This right was held to be empty if conditions were such that
its exercise was made all but impossible. The right must be made sub-
stantive by a legislative framework that would enable agricultural work-
ers to associate, since their efforts to do so are otherwise frustrated by in-
terference and threats of reprisal by employers.20 Dunmore moved section
2(d) jurisprudence from protecting the so-called negative right enshrined
in the Charter to holding that positive legislative action was sometimes
required to protect the right to associate. Writing for the majority, Justice
Bastarache concluded that in some (although not all) cases, the absence of
14 Labour Relations Act, 1995, SO 1995, c 1, Schedule A [LRA].
15 Labour Relations and Employment Statute Law Amendment Act, 1995, SO 1995, c 1
16 See Dunmore v Ontario (AG), 2001 SCC 94 at paras 3-4, [2001] 3 SCR 1016 [Dunmore].
It is worth noting that at this time Alberta was the only other provincial jurisdiction
that excluded agricultural workers from a generalized labour relations regime.
[LRESLAA].
17 The LRESLAA has also been challenged under section 15 of the Charter. However, sec-
tion 15 challenges have not been very fruitful to date.
18 Supra note 16.
19 See ibid at paras 37-38.
20 See ibid at para 48.
356 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
positive protections to conduct union activities could substantially inter-
fere21 with the very right to associate. While the SCC determined that
these cases would most likely appear in the labour relations context,22
Dunmore stopped short of entrenching a positive right to collectively bar-
gain. In keeping with jurisprudence until that point, it explicitly rejected
this idea.23
The substance of the SCCs elaboration of the meaning of section 2(d)
jurisprudence in Dunmore consisted of the following: the SCC, following
the dissent in the Alberta Reference,24 recognized that individuals join as-
sociations for social intercourse and to achieve common goals.25 The SCC
further recognized that since individuals organize into unions to achieve
goals that they can only achieve collectively, the right to join a union is
not a repudiation of Charter protection of individual rights, but its vindi-
cation: the law must recognize that certain union activities … may be
central to freedom of association even though they are inconceivable on
the individual level.26 The LRESLAA was held to be unconstitutional be-
cause, by excluding agricultural workers from an affirmative framework
in which the pursuit of the common goals associated with unionization
could be achieved, the state was held to have substantially interfered with
the agricultural workers right to associate.27
B. The Agricultural Employees Protection Act (AEPA)
The Government of Ontario responded to the Dunmore decision with
the AEPA, which came into effect in 2003. The AEPA addressed some of
the particular concerns raised in Dunmore, namely the need for basic pro-
21 Ibid at para 22.
22 See ibid at para 39, where the SCC notes that not all labour relations cases would re-
quire a positive framework in order to protect the right to associate. Notably, the SCC
distinguished between the agricultural workers in Dunmore and the RCMP officers in
Delisle v Canada (Deputy AG), [1999] 2 SCR 989, 176 DLR (4th) 513 [Delisle cited to
SCR]. Moreover, the SCC hinted as early as Delisle that there could be an exceptional
case whereby a positive framework was required in order to protect against substantial
interference even though that was not the case in Delisle: [T]he fundamental freedoms
protected by s. 2 of the Charter do not impose a positive obligation of protection or inclu-
sion on Parliament or the government, except perhaps in exceptional circumstances
which are not at issue in the instant case (ibid at para 33 [emphasis added]).
23 See Dunmore, supra note 16 at para 42.
24 Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, 38 DLR
(4th) 161 [Alberta Reference cited to SCR].
25 See Dunmore, supra note 16 at para 15.
26 Ibid at para 17.
27 See ibid at para 70.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 357
tections in order for agricultural workers to organize into a union. Among
other things, it offered agricultural workers the right to join a union and
participate in its lawful activities;28 the right to be protected against inter-
ference, coercion, and discrimination;29 the right to make representa-
tions30 to the employer about terms and conditions of work, either verbal-
ly or in writing;31 and the right to have these representations listened to,32
or, if submitted in writing, receive an acknowledgment that they had been
read.33 The AEPA also included a right to apply to a tribunal to deal with
complaints regarding the application of the Act.34 Notably, the APEA did
not include any right to receive an explanation as to the employers posi-
tion on the unions representations, nor any acknowledgement by the em-
ployer beyond that provided for above.
Following the implementation of the AEPA, the UFCW attempted to
negotiate collective agreements with two separate agricultural employers.
Ultimately the UFCW was stymied, and was unable to even beginmuch
less concludea series of negotiations.35 Subsequent to this failure, the
AEPA was challenged on the basis that it offered inadequate protection to
make section 2(d) of the Charter substantive.36 Central to the several
claims of the applicants was that the AEPA did not guarantee a scheme
for meaningful collective bargaining.37
C. The AEPA at Trial
The constitutional challenge to the AEPA was heard in the first in-
stance by Justice Farley in 2006.38 Of great importance is that he heard
the case at trial prior to the SCC ruling in Health Services. For Justice
Farley, the issue was not whether the AEPA was ideal legislation, but
28 See AEPA, supra note 2, ss 1(2)(1)-(2).
29 See ibid, s 1(2)(5).
30 Ibid, s 5(1).
31 See ibid, s 5(5).
32 See ibid, s 5(6).
33 See ibid, s 5(7).
34 See ibid, s 11.
35 See Fraser, supra note 1 at paras 9-11.
36 See ibid at para 12.
37 See ibid at para 7. The respondents also claimed that majoritarian exclusivity and a
scheme to resolve a bargaining impasse were necessary.
38 See Fraser v Ontario, [2006] 79 OR (3d) 219, 263 DLR (4th) 425 (Ont Sup Ct) [Fraser
(Ont Sup Ct)].
358 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
whether the minimum ha[d] been achieved.39 There are three things
that are particularly noteworthy with regard to Justice Farleys decision.
The first is that he correctly interpreted that judicial precedent did not, at
this time, protect a positive right to bargain collectively, but only the right
to join a union.40 He concluded that the AEPA provided the framework
necessary for employees to (a) join a union;41 and (b) pursue the common
goals associated with union activities.42 Importantly, the right to pursue
collective activities did not constitute a positive right to engage in any and
all associational activity. Indeed, the SCC in Dunmore made it clear that
activity itself43no matter how fundamental to a groups purposewas
not to be given constitutional protection. However, to the extent that no
clear distinction, no bright line, can be made between an individuals right
to associate and (at least some of) the reasons for which the individual
chooses to do so, the SCC acknowledged that the pursuit of some activities
was necessarily protected by virtue of protecting the right to associate in
the first place: certain collective activities must be recognized if the free-
dom to form and maintain an association is to have any meaning.44 If one
of the key reasons for which individuals associate is to achieve common
goals, and if the common goal of collective bargaining was not to be af-
forded constitutional protection, what union activities was Dunmore
thought to protect? According to Justice Farley, protected union activities
included the right of an employees association [to] make representations
to an employer concerning the terms and conditions of employment.45
The second thing of particular note is that Justice Farley concluded
that the requirement that the employer both listen and read any presen-
tations made by the union implied that the presentations also be consid-
ered. According to Justice Farley, the concept of listening and reading re-
spectively involves the aspect of comprehending and considering the rep-
resentations.46
Third, and indeed the most telling part of Justice Farleys decision, is
his claim that while it might have been desirable to compel the employer
by legislation to not only comprehend and consider, but also to respond to
the representations, this would then involve the parties in a form of col-
39 Ibid at para 13.
40 See ibid at para 29.
41 See ibid at para 16.
42 See ibid at para 15.
43 Dunmore, supra note 16 at para 18.
44 Ibid at para 17.
45 Fraser (Ont Sup Ct), supra note 38 at para 19.
46 Ibid.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 359
lective bargaining.47 Since, at this time, there was no constitutionally
protected right to collectively bargain, he ruled that the AEPA did not
need to include a provision for the employer to respond to the unions rep-
resentations in order for the act to pass constitutional muster. For our
purposes, the most important aspect of this remark regards what, in Jus-
tice Farleys view, the collective bargaining process minimally required,
which is a considered response on the part of the employer.
D. Health Services
With the Health Services decision in 2007, the terrain shifted even fur-
ther in the direction of constitutionalizing certain workers rights. In
2005, the Government of British Columbia instituted the Health and So-
cial Services Delivery Improvement Act (Bill 29).48 Sections of Part 2 of Bill
29 were held to be unconstitutional because they invalidated important
provisions of collective agreements then in force, and effectively precluded
meaningful collective bargaining on a number of specific issues.49 Health
Services was a landmark decision that reversed over twenty years of
Charter jurisprudence, which had until then explicitly rejected that collec-
tive bargaining was to be afforded constitutional protection.
The decision of the majority in Health Services begins with a long and
exacting review of the reasons for which the Charter must be read to in-
clude a right to bargain collectively. The SCC acknowledged that the
hitherto decontextualized and generic approach to the section 2(d)
right in the Charter had had the unfortunate effect of [overlooking] the
importance of collective bargainingboth historically and currently.50 In
short, Health Services revealed that the SCC no longer felt that its prece-
dents concerning section 2(d) jurisprudence could withstand critical scru-
tiny owing to the conclusion in Dunmore that occasionally individual
rights can only be protected by protecting the ability to engage in collec-
tive action. This is the case when the purpose for which the individual
joins an organization is attaining a goal that can only be achieved in con-
cert with others.
The limits in Dunmore are clearly relevant here, for although Dun-
more explicitly rejected the notion that collective bargaining was to be of-
fered any constitutional protection, it provided no good test, no principled
reasons, for deciding which union activities deserve protection as corollary
47 Ibid.
48 SBC 2002, c 2.
49 Health Services, supra note 7 at para 11 [emphasis added].
50 Ibid at para 30.
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to the right to associate and which do not. It excluded collective bargain-
ing simpliciter, and then went from there. In fact, the SCC in Dunmore
was encouraged in this vein by the claims made by the appellants them-
selves. For instance, the appellants drew the SCCs attention to the many
activities undertaken by unions other than collective bargaining.51 These
included making collective representations to an employer, adopting a
majority political platform, [and] federating with other unions.52 The SCC
thereby sought to inoculate its judgment from requiring collective bar-
gaining because at least some other union activities could be protected.
Specifically, the SCC was satisfied that by focusing on the associational
nature of the right, it could distinguish between this and the activities
qua activities that the association chose to undertake. The problem is that
the SCCs own analysis in Dunmore supported the conclusion that the
SCC could compel a positive legal framework to protect the right to asso-
ciate only by relying upon a purposive understanding of the nature of the
association itself. In other words, in Dunmore, the right to associate and
the purposive function of the association were not seen as discrete factors.
If only certain union activities are to be protected as a corollary of the
right to associate, it is impossible to discern which activities these should
be without elucidating a principled distinction among activities. Writing
for the majority in Health Services, Chief Justice McLachlin and Justice
LeBel finally concluded that [collective bargaining] emerges as the most
significant collective activity through which freedom of association is ex-
pressed in the labour context, and therefore that section 2(d) must in-
clude a procedural right to bargain collectively.53
1. The Right to a Meaningful Process
The SCC determined in Health Services that there existed a constitu-
tional right to not just a process of collective bargaining, but to a meaning-
ful collective bargaining process. At different times, the SCC said this was
to include meaningful discussion and consultation,54 which means that
the parties must be willing to explain and exchange their positions.55 Al-
so, the union must have the ability to exert meaningful influence over
working conditions,56 and the parties must make a reasonable effort to
51 Dunmore, supra note 16 at para 12.
52 Ibid at para 17.
53 Health Services, supra note 7 at para 66.
54 Ibid at para 92.
55 Ibid at para 101 [emphasis added].
56 Ibid at para 90.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 361
arrive at an acceptable contract.57 Language emphasizing the consulta-
tive portion of the collective bargaining process is found throughout the
judgment as determinative of what the SCC understood to constitute
meaningful, rather than pro forma, collective bargaining. Wanting to en-
sure that this point was clear, Chief Justice McLachlin and Justice LeBel
wrote: We pause to reiterate briefly that the right to bargain collectively
protects not just the act of making representations, but also the right of
employees to have their views heard in the context of a meaningful pro-
cess of consultation and discussion.58
Importantly, the SCC qualified the right. The justices wrote that
[s]ection 2(d) does not guarantee the particular objectives sought through
this associational activity.59 Moreover, the SCC stipulated that the right
to a meaningful collective bargaining process was not the right to a par-
ticular statutory scheme of collective bargaining.60 Finally, section 2(d)
was not to protect all aspects of this associational activity; it was to pro-
tect only against substantial interference with meaningful collective bar-
gaining.61
II. Ontario v. Fraser
In Fraser, the SCC (Justice Abella dissenting)62 overturned an OCA
ruling that had deemed the AEPA unconstitutional because it lacked pro-
visions for (1) a statutory duty to bargain in good faith; (2) statutory
recognition of the principles of exclusivity and majoritarianism; and (3) a
statutory mechanism for resolving bargaining impasses and disputes re-
garding the interpretation or administration of collective agreements.63
In defending its position, the SCC offered two main considerations. First,
the SCC maintained that it was a meaningful process64 of collective bar-
57 Ibid at para 101.
58 Ibid at para 114.
59 Ibid at para 89.
60 See ibid at para 19.
61 See ibid.
62 Three justices chose to provide reasons concurring in the result. Justices Rothstein and
Charron did not accept that section 2(d) included a right to bargain collectively and
found no constitutional issue with the AEPA for that reason. Justice Deschamps, how-
ever, noted that although collective bargaining is not protected by section 2(d), some col-
lective activity is protected by the Charter. She also suggested that section 15 might
provide a more fruitful avenue for redress of the kind of economic inequality (ibid at
para 319) that is germane here.
63 Fraser v Ontario (AG), 2008 ONCA 760 at para 80, 92 OR (3d) 481 [Fraser (Ont CA)].
64 Fraser, supra note 1 at para 42.
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gaining that was to have constitutional protection, thereby reiterating the
qualifier it espoused in Health Services that no particular bargaining re-
gime was to be given constitutional protection. The SCC then determined
that the three requirements the OCA had held to be lacking from the
AEPA amounted to the imposition of the Wagner model of collective bar-
gaining and therefore amounted to a particular statutory regime of bar-
gaining. Second, the SCC reiterated its expectation that legislatures are
to comply with the Charter and that all legislation must be reviewed in
this light. The SCC held that [s]ince Health Services, it has been clear
that this requires employers to consider employee representations in good
faith. Any ambiguity in the AEPA should be resolved accordingly.65
A. Analysis
1. The Wagner Model of Collective Bargaining
My first difficulty is with the SCCs characterization of the Wagner
model of collective bargaining. The SCC claimed that the OCA misunder-
stood Health Services to have constitutionalized a full-blown Wagner sys-
tem of collective bargaining66 and that this holding was in error since
Health Services specifically rejected the idea that a particular statutory
regime could be protected. I reject the SCCs characterization of the Wag-
ner model as a statutory labour relations regime, and argue that it is bet-
ter thought of as a paradigm of labour relations within which many dif-
ferent statutory requirements might fit. The point here is that the Wag-
ner model might refer to any statutory regime of collective bargaining
that includes some provisions for substantiating the principles that were
elucidated in the last paragraph of the preamble of the 1935 Wagner Act
from which it gets its name.67 This is certainly how the OCA understood
the issue, for it suspended its judgment for twelve months in order to
permit the government time to determine the method of statutorily pro-
65 Ibid at para 104.
66 Ibid at para 44.
67 National Labor Relations Act, c 372, 1, 49 Stat 449 at 449-50 (1935) (codified as
amended at 29 USC 151-169 (2006)) [Wagner Act]:
It is hereby declared to be the policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when they have occurred by encourag-
ing the practice and procedure of collective bargaining and by protecting the ex-
ercise by workers of full freedom of association, self-organization, and designa-
tion of representatives of their own choosing, for the purpose of negotiating the
terms and conditions of their employment or other mutual aid or protection.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 363
tecting the rights of agricultural workers to engage in meaningful collec-
tive bargaining.68
The Wagner Act elaborates specific processes and timelines with re-
gard to virtually every aspect of the bargaining process: what constitutes
an unfair labour practice;69 what constitutes legal and illegal picketing;70
exact timelines for serving notice to bargain71 and filing for mediation;72
notifications of intent to strike;73 procedures for election of union repre-
sentatives;74 the make-up and mandate of the National Labour Relations
Board;75 how to deal with essential services;76 and suspension of the Act
during emergencies,77 among many, many more. In this way, the Wagner
Act is a specific regulatory regime, specifying regulatory processes for vir-
tually every aspect of union-employer relations, including all those associ-
ated with collective bargaining.
The Wagner model, by contrast, is not such a regime. Within statutory
regimes that follow the model are found varied requirements. Such varia-
tions can include, among other things, the process by which a union noti-
fies the employer of its intention to bargain; how a union comes to be rec-
ognized as the bargaining agent (such as through card check, as was the
case in Ontario prior to the 1995 election of the Conservative government,
or through secret ballot as is now the case78); and what happens with re-
gard to impasses at bargaining. For instance, is there to be a mandatory
conciliation before either party can enter into a legal strike or lockout po-
sition? If so, what conditions and requirements are to moderate the concil-
iation process? Alternately, is strike/lockout to be jettisoned in favour of
mandatory arbitration, as is now the case with those service workers
deemed essential? What will be the process for determining who is an es-
68 Fraser (Ont CA), supra note 62 at para 139.
69 See Wagner Act, supra note 67, 8. For current version, see 29 USC 158(a)(1)-(5)
(2006).
70 Wagner Act, supra note 67, 8. For current version, see 29 USC 158(b)(7)(A)-(C)
(2006).
71 Wagner Act, supra note 67, 8. For current version, see 29 USC 158(7)(d)(1) (2006).
72 Wagner Act, supra note 67, 8. For current version, see 29 USC 158(7)(d)(3) (2006).
73 Wagner Act, supra note 67, 8. For current version, see 29 USC 158(7)(g) (2006).
74 Wagner Act, supra note 67, 9. For current version, see 29 USC 159 (2006).
75 Wagner Act, supra note 67, 10, 11. For current version, see 29 USC 160, 161
(2006).
76 For current version, see 29 USC 173.
77 See ibid, 176.
78 The exception to this is the construction industry, which retains card check certifica-
tion.
364 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
sential worker and who is not?79 Will this option include anti-scab legisla-
tion as presently exists in British Columbia, Quebec, and under the Can-
ada Labour Code, but not, for instance, in Ontario? Shall the employer be
enabled to bypass the union and offer an agreement directly to the mem-
bership, as is now (but was not always) the case in Ontario? If so, how
many times? (For instance, in Ontario this may happen only once.)
In this way, the Wagner model does not amount to a particular regime
of collective bargaining, but rather to some set of provisions deemed nec-
essary to make collective bargaining meaningful. While those provisions
may be more or less robust, what is unequivocal is that some positive leg-
islative provisions are necessary in order to claim that a positive right ex-
ists. In its judgment, the OCA did no more than claim that these nominal
provisions included some statutory requirement that the employer bar-
gain in good faith, some means to determine how the bargaining agent
shall be recognized, and some means of determining impasses and dis-
putes. The criteria for the means established need be no wider than is
necessary to render them capable of achieving that to which the workers
have a right: a meaningful process of consultation and negotiation.
But my point is not to substitute my judgment for that of the SCCs by
establishing what is necessary to make the right in question meaningful.
Rather, my point is to establish the ways in which the instant case de-
parts from the recent jurisprudence that has led to it. With that in mind, I
note that even if we were to agree with the SCCs position that the basic
requirements mandated by the OCA amounted to a particular statutory
regime, this would not have been adequate for the SCC to overturn the
OCAs finding. Rather, the SCC could have elucidated a lesser standard,
and still have upheld the OCAs conclusion that the AEPA was unconsti-
tutional, even if it offered dissenting reasons for doing so. The SCC, there-
fore, had to determine that the statutory provisions already extant in the
AEPA were adequate to provide a meaningful collective bargaining pro-
cess, based upon its elucidation in Health Services of what that meant.
This, it triedunsuccessfullyto do.
The plain language of the AEPA requires nothing more from employ-
ers than a guaranteequalified at thatof listening to employee repre-
79 For instance, under the Public Service Essential Services Act, SS 2008, c P-42.2, the
Saskatchewan government gave itself the power to unilaterally determine what was
and was not an essential service. (This was despite provisions contained within the col-
lective agreement of the Saskatchewan Government and General Employees Union,
outlining a process through which the parties, jointly, are to arrive at an essential ser-
vices designation.) By contrast, Ontarios Crown Employees Collective Bargaining Act,
1993 requires that the employer and the union that represents workers who are cov-
ered by the act jointly negotiate an essential services agreement (SO 1993, c 38).
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 365
sentations and acknowledging that those submitted in writing have been
read.80 Given that Health Services rejected as inadequate the mere right
to make representations,81 on what logic might the SCC have been rely-
ing to determine that the AEPA met the bar of what constitutes a mean-
ingful bargaining process? Predominantly, the SCC relied upon the im-
plied requirement to bargain in good faith, which it read in to the AEPAs
requirement that employers listen and read employee representations.
The SCC concluded that these provisions of the AEPA neither included by
word nor expressly ruled out the requirement to bargain in good faith.
The SCC concluded that, by implication, they include such a require-
ment.82 Anything short of comprehending and considering is a mere pro
forma.83 This brings us to the first discrepancy between the standard in
Health Services and the one elucidated in Fraser: the use of a weaker
standard to constitute good faith in the latter than in the former.
2. The Two Senses of Good Faith
Michael Bendel writes:
The obligation of an employer to enter into negotiations upon re-
quest with a view to arriving at a collective agreement is the most
important consequence to flow from the certification of a trade union
as bargaining agent by a labour relations board. In legislation, the
employers obligation to negotiate finds expression as the duty to
bargain in good faith, a duty which, with some variations, is a fea-
ture of almost every piece of labour relations legislation in North
America.84
80 See AEPA, supra note 2, ss 5(6), (7). The obligation of employers to give employees as-
sociations a reasonable opportunity to make representations is qualified in the AEPA
by the following considerations: The timing of the representations relative to planting
and harvesting times, the timing of the representations relative to concerns that may
arise in running an agricultural operation, including, but not limited to, weather, ani-
mal health and safety and plant health, and the [f]requency and repetitiveness of the
representations (ibid, s 5(3)). The representation process itself, then, is subject to con-
straints that offer wide interpretive leeway as to when and how frequently presenta-
tions may be made, as well as to what constitutes repetitiveness. Moreover, these con-
siderations suggest an expectation that the process is subordinate to employers non-
labour business concerns. For all intents and purposes, these parameters are to be in-
terpreted by the employer, with the presumption that an unsatisfactory interpretation
could be challenged before the tribunalwith no guarantee, of course, as to the out-
come.
81 Heath Services, supra note 7 at para 114.
82 Fraser, supra note 1 at para 101.
83 Ibid at para 103.
84 Michael Bendel, A Rational Process of Persuasion: Good Faith Bargaining in Ontario
(1980) 30:1 UTLJ 1 at 1.
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When we say that one has acted in good faith in everyday parlance, it
generally means that one has acted honestly and on the information that
one had available to them at the time, from a sincere motive to act with-
out malice or with any attempt to mislead or defraud others. In this
sensethe common sense interpretation of the termgood faith refers to
the principle itself: the expectation that one has acted in accordance with
a sincere motivation about which one is forthcoming. This is the first
sense of good faith. There is no test to determine whether or not someone
has acted in good faith. It would be difficult to imagine how one might
administer such a test outside of statutory duties, and statutory duties
are not the stuff of our everyday personal interactions. When a friend or
loved one says that when they did something they were acting in good
faith, we simply trust that to be the case. In this sense, the common sense
understanding evinces a weak standard.
Within the labour relations context, by contrast, the requirement to
act in good faith generally refers to something other than the principle as
elucidated above. The term good faith in the labour relations context re-
fers to a series of statutory duties that give expression to the principle
that give, in Bendels words, substance to the underlying require-
ment.85 This is the second sense of good faith. Since the employment rela-
tionship is not analogous to that between friends and loved ones, it is un-
derstandably the case that statutory duties must attach to what it is we
determine others are legally required to do. Importantly, these statutory
requirements may vary, and in this sense it can be said that more than a
single statutory scheme for collective bargaining is possible, as was eluci-
dated above. Section 50 of the Canada Labour Code, for instance, requires
that employers and employee associations bargain in good faith and that
they make every reasonable effort to enter into a collective agreement.86
More to the point, it allows for either party to bring a complaint to the
Canada Industrial Relations Board on the basis that the other party has
failed in either or both of those duties.87 While reiterating that the duty
85 Ibid at 31.
86 Canada Labour Code, RSC 1985, c L-2, ss 50(a)(i), (ii).
87 Legal and Legislative Affairs Division, Parliament of Canada, Collective Bargaining
under the Canada Labour CodeRemedies when Parties Fail to Resolve Labour
Disputes by Sebastian Spano (Ottawa: Library of Parliament, 2009). In the United
States, the National Labor Relations Act requires good faith in bargaining between em-
ployers and unions (supra note 67, 8(a)(5)). So, too, do most provincial labour codes in
Canada, as well as those of other commonwealth countries. In Australia, the recently
enacted Fair Work Act 2009 (Cth), s 228(1), sets out the following duties that give ex-
pression to the implied requirement to bargain in good faith:
(a) attending, and participating in, meetings at reasonable times;
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 367
does not extend to the content or outcome of any agreement arrived at
through that process, Justice Bastarache noted that the duty to bargain in
good faith includes the principles elucidated in the Canada Labour Code
and within most of the provincial labour codes of Canada.88 What is im-
portant about the existence of statutory duties to bargain in good faith is
that they render substantive and meaningful the implied requirement. In
the labour relations context this means that (a) it is possible to demon-
strate one partys failure to act in good faith; and that (b) the statutory
duties actually act to ensure that to which one has a right. A good faith
requirement without attached statutory duties is meaningless, for then
there is no way to determine whether or not the requirement has been
met.
In Health Services, the justices determined that, at minimum, mean-
ingful collective bargaining means that [t]he parties have a duty to en-
gage in meaningful dialogue and they must be willing to exchange and
explain their positions.89 They concluded that employees had a right to
engage in discussions with their employers.90 They further elucidated
that the Charter imposes corresponding duties on government employ-
ers to agree to meet and discuss demands with union representatives.91
Furthermore, the SCC determined that a stance of hostility toward the
bargaining process itself, or an inflexible and intransigent bargaining
position, may be evidence of what is known as surface bargaining, as
opposed to hard bargaining.92 The SCC, appropriately, acknowledged a
distinction between the two. The latter is the adoption of a tough stance,
(b) disclosing relevant information (other than confidential or commercially sen-
sitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the
agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representa-
tives for the agreement, and giving reasons for the bargaining representatives
responses to those proposals;
e) refraining from capricious or unfair conduct that undermines freedom of asso-
ciation or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the
agreement.
88 See Health Services, supra note 7 at para 99.
89 Ibid at para 101.
90 Ibid at para 89.
91 Ibid. While the SCC specified that the Charter imposed corresponding duties to meet
and discuss on government employers specifically, this quotation further suggests that
meaningful bargaining of any stripe requires, at the very least, dialogue between two
parties.
92 Ibid at para 104.
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aimed at bending the will of the other party to your way of thinking, but
does not constitute a violation of the duty to bargain in good faith. The
former, by contrast, is the apparent but false desire to actually arrive at a
collective agreement and constitutes a breach of the duty to bargain in
good faith.93 While it is often difficult to determine in practice which of
the two might be in play in any given instance, for present purposes it suf-
fices to note that surface bargaining constitutes a violation of the duty to
bargain in good faith.
Let us now apply this standard to the putative requirements of the
AEPA. Imagine the following scenario: The union spends months talking
to workers, and over several meetings it puts together a series of pro-
posals that have been democratically decided upon. The union captures
these proposals in a comprehensive and well-articulated twenty-page doc-
ument detailing the purpose of the proposals, the consequences to workers
if the proposals are not adopted, and the impact of their adoption on the
employer. After several months of meticulous research and work, it pre-
sents these to the employer. The employer responds one week later with
the following: I have read your submission. It is unclear how, under the
plain language of the AEPA, this would not be considered satisfactory. Af-
ter all, the AEPA includes no language requiring consultations of any
kind, much less any requirement that the employer respond to the em-
ployees bargaining proposals. The problem, then, with the SCCs particu-
lar understanding of good faith in the instant case is that it has been read
to mean little more than comprehension and consideration, and there is
no way to determine whether this has, in fact, been accomplished. The
SCC has simultaneously asserted an affirmative constitutional right to a
meaningful collective bargaining process that does not impose any corre-
sponding duties to require that an actual discussion ever take place. It
might be possible to determine that the employer had not properly com-
prehended or considered a submission if, for instance, the employer were
to reply to a twenty-page document with the acknowledgement that it had
been read, a mere five minutes after receiving it. Under other circum-
stances, however, how is one to guarantee that the employer has not
simply allowed a submission to sit on a desk for a week before finally
sending off the requisite acknowledgement that it had been duly read?
More substantially, in what way does the employers comprehension and
consideration, even if undertaken in good faith, amount to a negotiation
between parties of relatively equal bargaining power, or provide the union
with the means of exerting meaningful influence over the outcome of the
93 Ibid.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 369
process,94 the absence of which provided the SCC with its rationale for
overturning certain sections of Bill 29?95
The SCCs reliance on the minister of agricultures 2002 comments
clarifying how the AEPA ought to be interpreted has only added to the
vagaries surrounding what exactly good faith bargaining requires in the
case of agricultural workers. In 2002, the minister of agriculture indicated
that the government took its responsibility with regard to agricultural
workers seriously, and in light of the Dunmore decision, would act to en-
sure that the right to associate was meaningful. Of course, the minister
was referring to the right to associate and not the right to bargain collec-
tively. In fact, the minister expressly stated that the AEPA does not ex-
tend collective bargaining to agricultural workers.96 In Justice Roth-
steins dissenting reasons in Fraser, he writes: As with the words of the
AEPA, I read the words of the Minister plainly as presented. The com-
ments … indicate that the AEPA was intended to meet the obligations in
Dunmore, which did not include an obligation on employers to engage in
collective bargaining.97 By contrast, the majority chose to interpret the
ministers statements to mean that the AEPA would not extend a particu-
lar model of collective bargaining, but did not see in the ministers com-
ments a refusal to extend collective bargaining per se. The SCC updated
the ministers comment to indicate the governments intention to now
meet the requirement set out in Health Services.98 One explanation for the
SCCs arguably generous interpretation of the ministers comment is its
own directive that all legislation must be read to include SCC rulings,
even when legislation predates such rulings. The SCC concluded that the
tribunal remedy contained within the AEPA had not yet been tested and
that it was too early to dismiss it as a possible means of dealing with
complaints regarding an employers refusal to negotiate in good faith with
agricultural workers.99
3. The Tribunal
Even if one were to argue that the existence of the tribunal as a kind
of mediator effectively establishes that the AEPA meets constitutional
muster because it has established a bi-partite panel for the resolution of
94 Health Services, supra note 7 at para 159.
95 See ibid.
96 Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl, 3d Sess,
No 46B (22 October 2002) at 2339 (Helen Johns).
97 Fraser, supra note 1 at para 289 [emphasis added].
98 See ibid at para 106.
99 See ibid at paras 111-12.
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disputes,100 the tribunal cannot enlarge its own mandate and cannot,
therefore, effect the requirement to meet the statutory duties necessary to
render bargaining meaningful. Justice Abella noted in her dissent:
Section 11 of the AEPA gives the Tribunal authority to grant a
remedy for a contravention of the AEPA. But it is not a contraven-
tion of the AEPA to refuse to engage in a good faith process to make
reasonable efforts to arrive at a collective agreement. It is therefore
not part of the Tribunals mandate.101
As such, no remedy is available in this instance.
Is Justice Abellas dissent prescient? After all, as mentioned, the SCC
took pains to explicate that it is part of the AEPAs requirement to bar-
gain in good faith. Additionally, at least one observer predicts that the
SCCs prescription that the tribunal should be expected to read its man-
date in the event of any complaint in a purposive and meaningful way
likely extends to having discussions with the representatives of the em-
ployees.102 Aside from the questionable effectiveness of such discus-
sions, there is no certainty of even this much. In the first place, let us
imagine that the tribunal were utilized and, as Justice Abella maintains,
that it did not view its mandate as requiring discussions, but took the
AEPA at face value and required no more than that employee submissions
be listened to, read, and acknowledged as having been so. What then? The
constitutional remedy has already been exhausted with the finding that
the tribunal has the responsibility to deal with the application of the
AEPA, albeit in a purposive and meaningful way. After all, if the SCC be-
lieved that a purposive and meaningful interpretation of good faith re-
quired statutory provisions that prescribe collective bargaining beyond
the mere right to make representations, then here was its opportunity to
elaborate on what these were. It could have made these clear (or clearer)
and upheld the OCAs finding, even if it offered dissenting reasons for do-
ing so. By putting the focus back on the tribunal, the SCC has retreated
from its stance in Health Services and determined that a collective bar-
gaining process need not require that any discussion ever take place for it
to pass constitutional muster.
The only possible alternative is to treat the tribunal like a teenager
one has entrusted with the car in order to see if he or she will use that
privilege responsibly, and to take appropriate action if he or she does not.
100 Ibid at para 109.
101 Ibid at para 341.
102 Paul E Broad, The Fraser Decision: The Supreme Court of Canada Revisits Scope of
Charter-Protected Collective Bargaining Rights (3 May 2011), online: Hicks Morley
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 371
The problem here is that if the tribunal does not interpret the AEPA to
include the requirement to discuss and exchange positions and reasons
as Justice Abella opines,103 the SCCs only alternatives are either to let it
be, thus retreating from its standard in Health Services and ultimately
rendering the tribunal meaningless to effect any right to collectively bar-
gain; or to override it, rendering it largely superfluous. At issue is the role
the judiciary ought to play in the review of administrative action, a role
that is already contentious and ambiguous. It is not clear that a tribunal
decision upholding the plain language of the AEPA would meet the stand-
ard of correctness and reasonableness that the SCC has most recently
espoused as necessary to undertake judicial review of administrative ac-
tion.104 In other words, it is unclear that taking the AEPA at face value,
and thereby failing to incorporate any requirement to negotiate, could re-
sult in administrative review even if the result was a failure to provide a
means of meaningful negotiation between agricultural employers and the
unions that represent their employees.
4. Substantial Interference
The second inconsistent application of the rationale in Health Services
to the facts of the case in Fraser is the standard that the SCC had set to
determine substantial interference. Any positive legislative framework is
guaranteed only once its absence has been ascertained to have substan-
tially interfered with the exercise of the right. In Health Services, the SCC
claimed that by contravening certain significant provisions of existing col-
lective agreements and nullifying any future requirement to negotiate
specific terms on certain significant issues, the legislature had evinced
by deed if not by intentiona substantial interference in the right to col-
lectively bargain.105 What is most interesting is what the SCC determined
constitutes substantial interference. The SCC held that a particular sec-
tion of the Government of British Columbias Bill 29 was unconstitutional
even though it did not strictly speaking, prohibit consultations106 on the
matters at hand. In that instance, the SCC held that declaring that any
clause in a collective agreement providing for consultation is void is an in-
vitation to employers not to consult107 and that taking consultation,
which is an important component of the collective bargaining process, off
103 Fraser, supra note 1 at para 330.
104 Dunsmuir v New Brunswick, 2008 SCC 9 at para 34, [2008] 1 SCR 190.
105 See Health Services, supra note 7 at para 11.
106 Ibid at para 242.
107 Ibid.
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the table is also a disproportionate measure.108 Remember that, here,
consultation is being taken off the table only in the sense that Bill 29
voided the requirement to consult. In response to the respondents argu-
ments that Bill 29 did not render consultation strictly prohibited, and
consequently that the impugned portions of Bill 29 did not substantially
interfere with the right to collectively bargain, the SCC stated that the
right to collective bargaining cannot be reduced to a mere right to make
representations.109
Notably, the question of what constitutes substantial interference is
not removed from the relative capacities of different groups to effectively
engage their employers in a scheme of negotiation. This principle was elu-
cidated in Delisle where RCMP officers excluded from the Public Service
Staff Relations Act (PSSRA) were not considered to have had their Char-
ter right to associate violated because they had strength enough to form
associations despite their exclusion from the PSSRA.110 By comparison,
the SCC in Dunmore recognized that agricultural workers were marginal-
ized owing to their poor education, low status, lack of employment mobili-
ty, and political impotence, and as such their exclusion from a positive
legislative scheme was an instance of substantial interference with the
right to associate.111 The SCC accepted as evidence of the agricultural
workers weakness relative to that of the RCMP members the fact that an
agricultural workers union in Ontario had never existed apart from one
created during the short time in the early 1990s when agricultural work-
ers were brought under the aegis of the LRA, and which was subsequently
extinguished.112
By the same logic, it would seem reasonable for the SCC to have held
that the AEPAs lack of positive protection for anything beyond the mak-
ing of representations was, likewise, tantamount to an invitation not to
consult, thus reducing the right to collectively bargain to little more than
the right to make representations. Moreover, it would seem integral that
the SCC take more seriously what Justice Abella noted in her dissent,
which is that there was hitherto no evidence that a collective agreement
had ever been negotiated between an agricultural employer and an agri-
cultural workers union in Ontario, or that a single negotiation had ever
108 Ibid at para 249.
109 Ibid at para 114.
110 See Delisle, supra note 22 at paras 31-33.
111 See Dunmore, supra note 16 at para 41.
112 See ibid at para 42.
THE (UNCERTAIN) RIGHT TO COLLECTIVELY BARGAIN IN CANADA 373
taken place under the auspices of the AEPA since it came into effect in
2003.113
The substantial interference test in Health Services resulted in the
majority of the SCC deeming unconstitutional those portions of Bill 29
that did not positively affirm a right to consult and negotiate, whereas in
Fraser, the SCC held that no such positive legislation was required. The
relative strength of the British Columbia health workers vis–vis that of
Ontarios agricultural workers would seem to prescribe at least an
equalif not lesserstandard to determine substantial interference in
the instant case. However, the SCC in Fraser was satisfied in requiring a
stronger standard, effectively making it even more difficult for agricultur-
al workers in Ontario to negotiate significant terms of their employment
than is the case for British Columbias health care workers.
Conclusion
Fraser undoubtedly provides a setback for workers collective bargain-
ing rights in Canada. More to the point, however, is that the majoritys ra-
tionale in Fraser is inconsistent with the characterization of meaningful
collective bargaining that the SCC elucidated in Health Services. Specifi-
cally, the lack of statutory duties to bargain in good faith provides little
more than an opportunity for the employer to exercise exclusive jurisdic-
tion over this collective process, since the term has been interpreted to
mean little more than the duty to consider and comprehend, neither of
which can be guaranteed to have taken place. Moreover, even assuming
that employers engage in good faith bargaining on the measure of what
Fraser has taken that to mean, nothing in this provides for the robust
consultation and negotiation to which the SCC maintains workers have a
right.
Furthermore, Fraser is inconsistent with the rationale developed in
Dunmore and elaborated in Health Services with regard to substantial
interference, which in the former case provided a degree of protection
based upon the relative power of the groups in question. In Fraser, the
SCC has applied a lesser level of protection to a group that it had already
ascertained in Dunmore to require a greater-than-average level of legisla-
tive protection. The SCC has recognized, but set aside, evidence of the rel-
ative powerlessness of agricultural workers to achieve the collective ends
to which the SCC maintains they have a right, even though it readily
adopted almost identical evidence in Dunmore.
113 See Fraser, supra note 1 at para 334.
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Finally, the putative requirement that employers negotiate in good
faith without any attendant statutory duties has rendered the right to col-
lectively bargain not only less robust than might have been expected, but
also less clear. If workers have a constitutional right to a meaningful pro-
cess of collective bargaining, but this right does not correspond with any
duty on employers beyond what amounts to little more than surface bar-
gaining, it is impossible to ascertain what, exactly, workers have a posi-
tive right to, other than the right to make representations (which the SCC
has claimed is inadequate). The SCCs retreat from its decision in Health
Services has amounted to the SCC coming right back to the point from
which it had claimed to be departing in Dunmore: formalizing principles
that are undergirded by little meaning or substance.
