View cases - Stewart McKelvey

impugned law or state action has the effect of making it impossible to act collectively to achieveworkplace goals.[47] It follows that Health Services does not support the view of the Ontario Court ofAppeal in this case that legislatures are constitutionally required, in all cases and for allindustries, to enact laws that set up a uniform model of labour relations imposing a statutoryduty to bargain in good faith, statutory recognition of the principles of exclusive majority2011 SCC 20 (CanLII)representation and a statutory mechanism for resolving bargaining impasses and disputesregarding the interpretation or administration of collective agreements (C.A. reasons, at para.80). What is protected is associational activity, not a particular process or result. If it is shownthat it is impossible to meaningfully exercise the right to associate due to substantial interferenceby a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise ofthe s. 2(d) right is established, and the onus shifts to the state to justify the limit under s. 1 of theCharter.[48] The resolution of this appeal does not rest on stark reliance on a particularconception of collective bargaining. Rather, it requires us to return to the principles that underliethe majority rulings in Dunmore and Health Services. The question here, as it was in those cases,is whether the legislative scheme (the AEPA) renders association in pursuit of workplace goalsimpossible, thereby substantially impairing the exercise of the s. 2(d) associational right.(e) Response to Justice Deschamps