View cases - Stewart McKelvey

expression under s. 2(b), so too should this Court not privilege some associations over othersunder s. 2(d).Fourth, s. 2(d) does not afford constitutional protection to contracts. AlthoughHealth Services purported to constitutionalize the process of collective bargaining rather than itsfruits, it in fact granted constitutional protection to the collective agreements on the basis thatthey were the fruits of that process.2011 SCC 20 (CanLII)Fifth, s. 2(d) should be interpreted in such a way as to afford deference to thelegislative branch in the field of labour relations. Health Services erred in removingdecision-making power on this question from Parliament and the provincial legislatures. Whilethe courts are responsible for safeguarding the ability of individuals to do collectively that whichthey have the right to do as individuals, the judiciary is ill-equipped to engage in fineadjustments to the balance of power between labour and management in the labour relationscontext.Moreover, the reasons advanced in Health Services for extending protection tocollective bargaining under s. 2(d) ― Canadian labour history, Canada’s internationalobligations, and Charter values ― do not support conferring a constitutional right to collectivebargaining and imposing a duty on employers to engage in collective bargaining.The argument that a right to collective bargaining which includes a duty onemployers to bargain in good faith is a pre-statutory feature of Canadian labour law, made in