View cases - Stewart McKelvey

[51] In our view, the majority decision in Health Services should be interpreted asholding what it repeatedly states: that workers have a constitutional right to make collectiverepresentations and to have their collective representations considered in good faith.(f) Response to Justice Rothstein[52] Justice Rothstein argues that Health Services represents a radical departure from2011 SCC 20 (CanLII)previous jurisprudence and was wrongly decided.[53] The central argument of our colleague is that s. 2(d) of the Charter does not protectcollective bargaining. He understands the majority decision in Health Services to haveconstitutionalized collective bargaining. That, he says, is wrong in principle, inconsistent withthe Court’s prior jurisprudence, and unworkable in practice.[54] Our colleague appears to interpret Health Services as establishing directly orindirectly a Wagner model of labour relations. The actual holding of Health Services, asdiscussed above, was more modest. Health Services affirms a derivative right to collectivebargaining, understood in the sense of a process that allows employees to make representationsand have them considered in good faith by employers, who in turn must engage in a process ofmeaningful discussion. The logic that compels this conclusion, following settled Charterjurisprudence, is that the effect of denying these rights is to render the associational processeffectively useless and hence to substantially impair the exercise of the associational rightsguaranteed by s. 2(d). No particular bargaining model is required.