View cases - Stewart McKelvey

19. Nonetheless, the majority held that the process of good faith collective bargaining demandsthat unions and employers engage with each other and “make a reasonable effort to arrive at anacceptable contract”: Health Services, at para. 101.[171] The Chief Justice and LeBel J. say that Health Services “follows directly” from thefinding in Dunmore, because the government action in that case “rendered the meaningfulpursuit of [workplace goals and collective bargaining activities] impossible and effectively2011 SCC 20 (CanLII)nullified the right to associate of its employees” (para. 38). However, as I have discussed above,this conflates two arguments. The first is that restrictions on the ability to associate, eitherdirectly or because the government interfered with an activity because of its “associationalnature”, are unconstitutional, which was the finding in Dunmore. The second is thatgovernments are required to provide legislation which enhances the ability of an existingassociation to pursue its goal of negotiating a collective agreement, which was the finding inHealth Services, but was contrary to Dunmore. As noted above, an application of the actualholding in Dunmore would have asked only if the government substantially interfered with theability to associate.IV. Section 2(d) of the Charter Does Not Protect Collective Bargaining[172] I now turn to the fundamental question in this case: namely, whether Health Serviceswas wrong to constitutionalize collective bargaining. In my respectful view, Health Serviceswas indeed wrong. The problems relating to this aspect of Health Services can be grouped intothree categories.