View cases - Stewart McKelvey

[14] With respect to the particular statutory protections in the AEPA, Farley J. found thatthey met the minimum required standards. He found that they confer the power to organize (s.1); protection against denial of access to property (s. 7); protection against employer interferencewith trade union activity (s. 8); protection against discrimination (s. 9); protection againstintimidation and coercion (s. 10); protection against alteration of working conditions during thecertification process (ss. 9-10); protection against coercion of witnesses (s. 10); and removal of2011 SCC 20 (CanLII)Board notices (s. 10). He allowed that it would have been preferable to have mirrored theprovisions of the LRA more precisely “to eliminate possible fears” that employers might alterworking conditions to hinder associational activities (para. 18). However, he felt that the answerto these concerns lay with the Tribunal, which had not been asked to deal with the workers’complaints. He stated:If the Tribunal felt that it was for some jurisdictional reason constrained fromnegatively sanctioning such activity, then one would presume that the applicants orothers of a like mind together with the UFCW would have a strong case to bringback in this regard. One would think it better to see how the Tribunal operates infact before condemning it as powerless to deal with such abuses. This wait and seepragmatic approach is desirable with respect to possible concerns about lack oflabour relations expertise/experience on the part of the specified panel roster of theTribunal. There has been no use of the mechanics of the AEPA as to bringing a casebefore the Tribunal; the applicants stated that it would be fruitless to bring a uselessapplication before a useless Tribunal. I am of the view that this condemnation ispremature. A successful application would do one of several things: be effectivepositively as to action; or morally give the wrongdoing employer a “bloody nose”; orif truly an empty process, it would demonstrate the need for strengthening bylegislative amendment. See also Danson v. Ontario (Attorney General), [1990] 2S.C.R. 1086, … at p. 1099 … where Sopinka J. for the court stated: “This Court hasbeen vigilant to ensure that a proper factual foundation exists before measuringlegislation against the provisions of the Charter, particularly where the effects ofimpugned legislation are the subject of the attack.” [para. 18]