View cases - Stewart McKelvey

[49] Justice Deschamps adopts a narrow interpretation of the majority reasons in HealthServices, stating that they merely recognized “that freedom of association includes the freedomto engage in associational activities and the ability of employees to act in common to reachshared goals related to workplace issues and terms of employment” (para. 308). In her view, itwas unnecessary for the majority in that case to consider the duty to negotiate in good faith, andconsequently argues that the passages of the majority judgment that discussed this duty were in2011 SCC 20 (CanLII)obiter.[50] However, such a narrow interpretation of the majority reasons in Health Serviceswould not support the holding in that case. If s. 2(d) merely protected the right to act collectivelyand to make collective representations, the legislation at issue in that case would have beenconstitutional. The legislation in that case violated s. 2(d) since it undermined the ability ofworkers to engage in meaningful collective bargaining, which the majority defined as good faithnegotiations (para. 90). The majority underlined thatthe right to bargain collectively protects not just the act of making representations,but also the right of employees to have their views heard in the context of ameaningful process of consultation and discussion. This rebuts arguments made bythe respondent that the Act does not interfere with collective bargaining because itdoes not explicitly prohibit health care employees from making collectiverepresentations. While the language of the Act does not technically prohibitcollective representations to an employer, the right to collective bargaining cannot bereduced to a mere right to make representations. [Emphasis added; para. 114.]