View cases - Stewart McKelvey

“recognized that under most Canadian labour law statutes, employers had an obligation tobargain in good faith, the claimants were not seeking a declaration characterizing this obligationas a constitutional one” (para. 304). Despite this issue not having been raised in Health Services,the majority in that case did not find it “procedurally inappropriate” to find that “collectivebargaining imposes corresponding duties on the employer” and “requires both employer andemployees to meet and to bargain in good faith ” (para. 90).2011 SCC 20 (CanLII)[151] Lastly, while the foregoing factors all support overruling Health Services, as theChief Justice and LeBel J. point out, it is fundamental that it be demonstrated that HealthServices was decided in error. The balance of these reasons endeavour to explain why HealthServices was erroneously decided.III. The Explicit Break With Precedent In Health ServicesA. Introduction[152] Prior to explaining why Health Services erred in finding that s. 2(d) of the Charterprotects collective bargaining, I will briefly refer to Dunmore v. Ontario (Attorney General),2001 SCC 94, [2001] 3 S.C.R. 1016, which was consistent with this Court’s jurisprudence priorto Health Services on the contours of s. 2(d) in the labour law context. I do this to underline theexplicit break from that jurisprudence in Health Services. This break came when a majority ofthis Court found that s. 2(d) required that government legislate to facilitate collective goalswhich an association was formed to pursue, rather than protecting the freedom of association