View cases - Stewart McKelvey

[62] We have already discussed this jurisprudence in detail and need not repeat thediscussion here. In brief, the early cases did not consider the issue. Nothing said in them,however, negates the current state of the law, except for the fourth proposition in PIPSC, whichwas corrected in Dunmore to recognize that s. 2(d) extends to collective, as distinct fromindividual goals. Dunmore, as discussed above, established the proposition that legislativeregimes that make meaningful pursuit of workplace goals impossible significantly impair the2011 SCC 20 (CanLII)exercise of the s. 2(d) right to free expression and constitute a limit on the right which isunconstitutional unless justified by the state under s. 1. Health Services, far from being an“express break” with prior jurisprudence, is grounded in the principles earlier enunciated inDunmore.(iii) Purpose of Section 2(d): Individual Versus Collective Rights[63] Our colleague argues that the recognition of a constitutional right to collectivebargaining in Health Services is not supported by the purpose of s. 2(d), because it improperlyassigns a collective dimension to individual rights. The collective dimension of individual rightswas recognized by Dickson C.J., dissenting in Alberta Reference, stating that s. 2(d) protectsgroup activity for which activity there is “no analogy involving individuals” such as the right tobargain collectively (pp. 367-70). The Court in Dunmore modified the fourth proposition in theearlier case of PIPSC. As Bastarache J. there stated, “certain collective activities must berecognized if the freedom to form and maintain an association is to have any meaning”.