View cases - Stewart McKelvey

[67] Our colleague argues that by requiring a process that allows for meaningful dialogueon workplace matters, Health Services wrongly converts a negative freedom into a positive right.This bright line between freedoms and rights, seems to us impossible to maintain. Just asfreedom of expression implies correlative rights, so may freedom of association. The freedom todo a thing, when guaranteed by the Constitution interpreted purposively, implies a right to do it.The Charter cannot be subdivided into two kinds of guarantees — freedoms and rights.2011 SCC 20 (CanLII)[68] The majority in both Dunmore and Health Services held that freedom to associatemay require the state to take positive steps. Bastarache J. in Dunmore underlined that “it may beasked whether the distinction between positive and negative state obligations ought to benuanced in the context of labour relations” (para. 20). He further noted thathistory has shown, and Canada’s legislatures have uniformly recognized, that aposture of government restraint in the area of labour relations will expose mostworkers not only to a range of unfair labour practices, but potentially to legalliability under common law inhibitions on combinations and restraint of trade. . . .In this context, it must be asked whether, in order to make the freedom to organizemeaningful, s. 2(d) of the Charter imposes a positive obligation on the state toextend protective legislation to unprotected groups. [para. 20][69] This Court has consistently rejected a rigid distinction between “positive” freedomsand “negative” rights in the Charter. For example, it recently held that s. 2(b) may require thegovernment to disclose documents to the public in order to enable meaningful discourse: CLA,at para. 37. As stated by L’Heureux-Dubé J. in Haig v. Canada, [1993] 2 S.C.R. 995:The distinctions between “freedoms” and “rights”, and between positive andnegative entitlements, are not always clearly made, nor are they always helpful. One