View cases - Stewart McKelvey

[38] The decision in Health Services follows directly from the principles enunciated inDunmore. Section 2(d), interpreted purposively and in light of Canada’s values andcommitments, protects associational collective activity in furtherance of workplace goals. Theright is not merely a paper right, but a right to a process that permits meaningful pursuit of thosegoals. The claimants had a right to pursue workplace goals and collective bargaining activitiesrelated to those goals. The government employer passed legislation and took actions that2011 SCC 20 (CanLII)rendered the meaningful pursuit of these goals impossible and effectively nullified the right toassociate of its employees. This constituted a limit on the exercise of s. 2(d), and was thusunconstitutional unless justified under s. 1 of the Charter.[39] While the majority decision in Health Services sits firmly within the principles theCourt had earlier set out in Dunmore, in its discussion of the s. 2(d) right the Court went on toexplain in greater detail what the government must permit in order to avoid the charge ofsubstantial interference with the s. 2(d) right in the context of collective action in pursuit ofworkplace goals. In Dunmore, Bastarache J. stated that “the effective exercise of these freedomsmay require . . . the exercise of certain collective activities, such as making majorityrepresentations to one’s employer” (para. 30).It remained uncertain what other collectiveactivities might be protected.[40] The majority of the Court in Health Services affirmed that bargaining activitiesprotected by s. 2(d) in the labour relations context include good faith bargaining on importantworkplace issues (para. 94; see also paras. 93, 130, 135). This is not limited to a mere right tomake representations to one’s employer, but requires the employer to engage in a process of