View cases - Stewart McKelvey

Nor did invoking Charter values in Health Services support constitutionalizingcollective bargaining rights. Health Services maintained that the recognition of a good faithcollective bargaining right is consistent with and promotes other Charter rights, freedoms andvalues: namely, human dignity, equality, liberty, respect for the autonomy of the person and theenhancement of democracy. A duty to bargain in good faith may achieve those ends. However,either the Charter requires something or it does not. The role of the Court is to determine what2011 SCC 20 (CanLII)the Charter requires and what it does not and then apply the requirements it finds to the casebefore it. It is not to simply promote, as much as possible, values that some subjectively thinkunderpin the Charter in a general sense. As s. 2(d) is silent on questions of economic and socialpolicy, this Court may not intervene on such matters in the absence of a legislative orconstitutional grant of authority.Finally, the majority’s approach to collective bargaining in particular and s. 2(d) ingeneral articulated in Health Services is unworkable. It extends constitutional protection to theduty to bargain in good faith without importing other aspects of the Wagner framework and bypurporting to protect the process of collective bargaining without also protecting its fruits,neither of which is tenable. For a duty to bargain in good faith not to be an illusory benefit, theremust be both a way of dealing with bargaining impasses as well as an effective remedy forpersistent breaches of a duty to bargain in good faith. The first requires that there be somedefault mechanism for resolving the dispute in case an impasse is reached — such as striking orbinding arbitration — while the second may require, in extreme circumstances, the imposition byan arbitrator of particular terms of a collective agreement. Each of these goes well beyond