View cases - Stewart McKelvey

Per Charron and Rothstein JJ.: Section 2(d) protects the liberty of individuals toassociate and engage in associational activities. It protects the freedom of workers to cometogether, to form a bargaining position and to present a common and united front to theiremployers. It does not protect a right to collective bargaining nor does it impose duties onothers, such as the duty to bargain in good faith on employers. To the extent that Health Servicesconstitutionalized collective bargaining, it was not correctly decided. It should be overturned2011 SCC 20 (CanLII)thus disposing of the constitutional challenge in this case.This Court may overrule its own precedents, but it should only do so where there arecompelling reasons. The question in every case involves a balancing: Do the reasons in favourof following a precedent ― such as certainty, consistency, predictability and institutionallegitimacy ― outweigh the need to overturn a precedent that is sufficiently wrong? In this case,compelling reasons exist for overturning Health Services: the error in Health Services concernsa question of constitutional law and is not susceptible to being corrected in a lasting way by thelegislative branch; Health Services strayed significantly from other sound precedents, includingDunmore, with respect to the purpose of Charter protection for freedom of association; theconstitutionalization of collective bargaining, as envisaged in Health Services is not workablewithout other elements of modern labour legislation in place; and there has been intenseacademic criticism of Health Services.Health Services was an express break with prior decisions of this Court on s. 2(d),including Dunmore. This break came when the majority of the Court found that s. 2(d) requiredthat government legislate to facilitate collective goals which an association was formed to