View cases - Stewart McKelvey

Per Deschamps J.: The holding in Health Services does not have the broad scopebeing attributed to it by the majority in the case at bar. The issue here is not, whether the AEPAprovides a process that satisfies the right of an employees’ association to make representations tothe employer and have its views considered in good faith. The duty to act in good faith is partand parcel of a web of statutory components. It should not be found to be a constitutionalrequirement in the instant case. The expanded definition of freedom of association that resulted2011 SCC 20 (CanLII)from Health Services has no bearing on the protection the Ontario legislature must provide toagricultural workers.The effect of Health Services is that freedom of association includes the freedom toengage in associational activities and the ability of employees to act in common to reach sharedgoals related to workplace issues and terms of employment. This delineation of the scope offreedom of association does not entail a more expansive protection than the legislativeframework mandated by Dunmore for the agricultural workers. The AEPA complies with thisCourt’s conclusion in Dunmore and it complies with the Charter.Even though labour law provides tools that help reduce economic inequality, not allaspects of labour law are protected by the Charter. Economic equality is not an “equality right”for the purposes of s. 15 of the Charter. Dunmore was based on the notion that the Charter doesnot ordinarily oblige the government to take action to facilitate the exercise of a fundamentalfreedom. Recognition was given to the dichotomy between positive and negative rights. To getaround the general rule, a framework was established for cases in which the vulnerability of agroup justified resorting to government support.