View cases - Stewart McKelvey

[145] Third, the constitutionalization of collective bargaining, as envisaged in HealthServices and by the Chief Justice and LeBel J. in this case, is unworkable. On a practical level,the right to collective bargaining asserted by my colleagues is not workable without otherelements of modern labour legislation in place. As Winkler C.J.O. recognized at the Court ofAppeal, if it is to be effective, the right to collective bargaining will be hard pressed to performits function without reinforcement from the other aspects of labour legislation that he identified2011 SCC 20 (CanLII)(2008 ONCA 760, 92 O.R. (3d) 481). As a matter of principle, the distinction between substanceand process on which the ruling in Health Services (and of the Chief Justice and LeBel J. in thiscase) is premised cannot be sustained. The process is itself a desirable outcome for theassociation of workers, and will result in substantive concessions by the employer. Thus, bothprinciple and practicality militate against sustaining the ruling in Health Services.[146] Fourth, there has been intense academic criticism of Health Services, including byProfessor Eric Tucker, who was himself cited by the majority in support of its decision. See B.Etherington, “The B.C. Health Services and Support Decision — The Constitutionalization of aRight to Bargain Collectively in Canada: Where Did It Come From and Where Will It Lead?”(2009), 30 Comp. Lab. L. & Pol’y J. 715, at pp. 734-39. I recognize that there is also academiccommentary agreeing with the results of Health Services, as pointed out by the Chief Justice andLeBel J. (at para. 88). The existence of such commentary is not unexpected given the highlycontentious and polarizing nature of labour relations. However, as I will explain, while someagree with the result, the academic criticism of concern here targets the reasoning of the majorityin Health Services.