View cases - Stewart McKelvey

protection of a mere process and results in the protection of a particular substantive outcome.The majority’s inability to separate substance and process, and the consequentconstitutionalization of collective bargaining terms demonstrates the unworkability of thedistinction between substance and process asserted in Health Services.The AEPA does not violate s. 2(d) of the Charter. By enacting the AEPA, thelegislature precisely addressed this Court’s ruling in Dunmore. The text, context and purpose of2011 SCC 20 (CanLII)the AEPA clearly demonstrates that the legislature intentionally opted not to include a duty onemployers to engage in collective bargaining with employee associations. Section 5 of the AEPAcannot be read as imposing a duty to bargain in good faith. The words of s. 5 are unambiguous:they provide employee associations the opportunity to make representations to an employer. Theonly obligation on an employer is to provide the employee association with the opportunity tomake representations and to listen if they are oral or read and acknowledge them if they arewritten. To find otherwise, would be to ignore the grammatical and ordinary meaning of thewords, and the purpose of the AEPA, and would create ambiguity where none exists. Moreover,nothing in the explicit purpose in s. 1 of the AEPA or the clear words of the Minister whointroduced the AEPA support the view that agricultural employees have a right to requireagricultural employers to engage in collective bargaining.As for the issues under s. 15, the category of agricultural worker does not rise to thelevel of an immutable (or constructively immutable) personal characteristic of the sort that wouldmerit protection against discrimination under s. 15.