View cases - Stewart McKelvey

To redress economic inequality, it would be more faithful to the design of theCharter to open the door to the recognition of more analogous grounds under s. 15. EachCharter protection should not be interpreted in a formalistic manner. Rather, if the law needs tomove away from Dunmore’s distinction between positive and negative rights, this should not beaccomplished by conflating freedom of association with the right to equality or any otherCharter right that may be asserted by a litigant. An analysis based on principles grounding the2011 SCC 20 (CanLII)protection of rights and freedoms offers a better prospect of judicial consistency than one basedon the more amorphous notion of “Canadian values”.Per Abella J. (dissenting): The AEPA violates s. 2(d) of the Charter because it doesnot protect, and was never intended to protect, collective bargaining rights. The AEPA, enactedin 2002, was the government’s good faith implementation of this Court’s 2001 decision inDunmore, which defined the scope of s. 2(d) as being the right to organize and makerepresentations. Health Services, decided in 2007, expanded that scope to include protection fora process of collective bargaining, including the duty to consult and negotiate in good faith. Theapplicable legal principles are therefore those set out in Health Services and the AEPA must beassessed against the revised constitutional standard.The AEPA has virtually no language that indicates protection for a process ofcollective bargaining. It requires only that an employer “listen” if representations are madeorally, or, if made in writing, “acknowledge” that the representations have been read. Noresponse, discussions, or negotiations are required. Moreover, when the legislation wasintroduced, the government’s intention to exclude any protection for collective bargaining rights