View cases - Stewart McKelvey

[55] Rothstein J. calls for Health Services to be overturned. But his views also implyoverturning Dunmore, on which Health Services rests. Rothstein J. states that “the essence offreedom of association is that it enables individuals to do in association what they could do asindividuals (para. 197). This echoes the model of s. 2(d) adopted by the plurality in PIPSC, andrejected by Bastarache J. in Dunmore. For the reasons that follow we remain of the view thatDunmore and Health Services represent good law and should not be overruled.2011 SCC 20 (CanLII)(i) The Caution Required in Overturning Precedent[56] Our colleague correctly recognizes at the outset of his reasons that overturning aprecedent of this Court is a step not to be lightly undertaken. We would note that as weunderstand the law (see above), rejection of Health Services implies rejection of Dunmore aswell, since the two cases rest on the same fundamental logic.[57] The seriousness of overturning two recent precedents of this Court, representing theconsidered views of firm majorities, cannot be overstated. This is particularly so given theirrecent vintage. Health Services was issued only four years ago, and, when this appeal wasargued, only two years had passed.[58] Rothstein J. suggests that since Health Services deals with constitutional law, theCourt should be more willing to overturn it (paras. 141-43). In our respectful view, thisargument is not persuasive. The constitutional nature of a decision is not a primary considerationwhen deciding whether or not to overrule, but at best a final consideration in difficult cases.