View cases - Stewart McKelvey

of s. 2(d) employers “must engage in a process of meaningful discussion” because “the effect ofdenying these rights is to render the associational process effectively useless” (para. 54).[123] The term collective bargaining may have different meanings in other contexts,which I discuss in further detail below. For the sake of clarity, throughout these reasons, I willuse the term to refer to the entitlements and obligations that the Chief Justice and LeBel J. viewas being encompassed by s. 2(d), as quoted in paragraphs 121 and 122 above.2011 SCC 20 (CanLII)[124] I respectfully disagree with the Chief Justice and LeBel J. that collective bargainingenjoys constitutional status under the s. 2(d) freedom of association. I do not agree that s. 2(d)requires the state to impose a complex set of statutorily defined reciprocal rights and duties onemployers and workers associations, including a duty to bargain in good faith.[125] In my view, s. 2(d) protects the liberty of individuals to associate and engage inassociational activities. Therefore, s. 2(d) protects the freedom of workers to form self-directedemployee associations in an attempt to improve wages and working conditions. What s. 2(d)does not do, however, is impose duties on others, such as the duty to bargain in good faith onemployers.[126] A constitutionally imposed duty to bargain in good faith strengthens the position oforganized labour vis-à-vis employers. I express no opinion on the desirability of such anoutcome for agricultural employees in Ontario. My point is only that courts are ill-suited todetermine what is a matter of labour relations policy. Such policy decisions require a balancing