View cases - Stewart McKelvey

[18] In view of the conflicting approaches to the guarantee of freedom of association inthe labour context put before us, it may be useful to canvas the jurisprudence and set out theprinciples that guide the analysis of s. 2(d). The respondents’ claim largely turns on theinterpretation of our Court’s judgments in Dunmore and Health Services. The ultimate questionis whether s. 2(d), properly understood and applied, requires the Ontario legislature to provide aparticular form of collective bargaining rights to agricultural workers, in order to secure the2011 SCC 20 (CanLII)effective exercise of their associational rights. To resolve this question, we will first consider thedevelopment of this Court’s jurisprudence in this area of the law.(1) Freedom of Association in the Labour Context: The Jurisprudential Background(a) The Early Cases[19] The first set of cases to consider s. 2(d) of the Charter, known as the trilogy, wereReference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (the “AlbertaReference”); PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R.460. The majority of the Court held that s. 2(d) did not protect the right to strike, the issue in thecases. In arriving at this conclusion, members expressed a number of views on the guarantee offreedom of association.[20] McIntyre J. stated that “like most other fundamental rights”, the right to freedom ofassociation has no single purpose or value. Rather, reflecting the social nature of human beings,it protected the right to associate with others “both to satisfy [their] desire for social intercourse