View cases - Stewart McKelvey

[36] The unions responded by bringing an action claiming that the government hadbreached s. 2(d) by legislatively interfering with freedom of association. They further claimedthat the government had done so in circumstances that could not be justified under s. 1 of theCharter. Health Services thus put directly in issue the right to collective bargaining. Theclaimants did not seek the enactment of associational protections. Rather, they asserted that s.2(d) protected a right to collective bargaining and that the government had violated the2011 SCC 20 (CanLII)constitutional guarantee of freedom of association by legislating to both overturn existingcontracts and preclude effective collective bargaining in the future. The unions lost at trial andon appeal but succeeded in this Court.[37] While Health Services concerned the actions of a government employer nullifyingcollective bargaining arrangements with unions representing its own employees, the Court restedits decision on a more general discussion of s. 2 of the Charter. Applying the principles ofinterpretation established in Dunmore, a majority of the Court held that s. 2(d) includes “aprocess of collective action to achieve workplace goals” (para. 19). This process requires theparties to meet and bargain in good faith on issues of fundamental importance in the workplace(para. 90). By legislating to undo the existing collective bargaining arrangements and byhampering future collective bargaining on important workplace issues, the British Columbiagovernment had “substantially interfered” with the s. 2(d) right of free association, and had failedto justify the resultant limitation on the exercise of the right under s. 1 of the Charter (paras. 129-161).