View cases - Stewart McKelvey

[147] Even some of the authors who support the results of Health Services and who arecited by my colleagues are critical of aspects of the reasoning employed by the majority of theCourt to achieve those results. For example, Professor Jamie Cameron, in “Due Process,Collective Bargaining, and s. 2(d) of the Charter: A Comment on B.C. Health Services” (2006-2007), 13 C.L.E.L.J. 233, while supportive of the results of Health Services, criticized thedecision because “B.C. Health Services relied on a concept of entitlement that was so heavily2011 SCC 20 (CanLII)and exclusively contextualized to collective bargaining that the decision lost contact with theunderlying values which have anchored s. 2(d) since the Labour Trilogy” (p. 262; see also pp.240 and 259).[148] I reiterate that in light of such academic criticism, it is appropriate for this Court totake notice and acknowledge the errors that have been identified.[149] My colleagues say that it is “procedurally inappropriate” to overrule Health Servicesbecause none of the parties have expressly asked this Court to do so (para. 59). However, thesubstance of the arguments of the appellants and interveners supporting them are in effect aclaim that Health Services should be overruled. The appellants and interveners supporting themall say that in this case there should be no obligation on agricultural employers to engage incompulsory collective bargaining. In my opinion, it is not possible to agree that there is no suchobligation without overruling Health Services.[150] Further, as Deschamps J. observes, “an employer’s duty to bargain in good faith wasnot even raised” in Health Services (at para. 297), and while the parties in Health Services