View cases - Stewart McKelvey

[73] It may also be observed that Health Services does not impose constitutional dutieson private employers, but on governments as employers and parliaments and legislatures as lawmakers, in accordance with s. 32 of the Charter. Rather, the majority held that individuals havea right against the state to a process of collective bargaining in good faith, and that this rightrequires the state to impose statutory obligations on employers. As held by Cory and IacobucciJJ. in Vriend v. Alberta, [1998] 1 S.C.R. 493, one must “distinguish between ‘private activity’2011 SCC 20 (CanLII)and ‘laws that regulate private activity’. The former is not subject to the Charter, while the latterobviously is” (para. 66). If workers are incapable of exercising their right to collectivebargaining, they may only bring a Charter claim against the government and not their employer,and they must show a state action.(v) The Argument That Health Services Privileges Particular Associations[74] Our colleague argues that the effect of Health Services is to privilege someassociations over others, by interpreting s. 2(d) in a way that is not content-neutral. Broadly put,the argument appears to be that, by considering the goals of a particular association, one movesbeyond pure associational activity into a court-based selection of what goals are acceptable andwhat goals are not.[75] Yet consideration of goals cannot be avoided. One of the basic principles of Charterinterpretation is that rights must be interpreted in a purposive way — having regard for thepurposes, or goals, they serve. Thus, in the Alberta Reference, McIntyre J. described the core ofs. 2(d) protection as being association “both to satisfy [a] desire for social intercourse and to