View cases - Stewart McKelvey

[173] First, the collective bargaining right recognized in Health Services is inconsistentwith the purpose of s. 2(d). As I will explain, the interpretation of s. 2(d) adopted by themajority in Health Services is unsound in principle for a number of reasons, and the correctconceptual framework for s. 2(d) is that established by the Trilogy and applied in subsequentcases. Section 2(d) does not protect a right to collective bargaining.[174] Second, the reasons advanced in Health Services for protecting collective bargaining2011 SCC 20 (CanLII)under s. 2(d) do not support that conclusion. The majority in Health Services found that thehistory of Canadian labour law, international law, and Charter values all pointed in favour ofextending the guarantee of freedom of association to include collective bargaining. While all ofthose factors support constitutional recognition of the freedom of workers to associate, they donot support the right to collective bargaining.[175] Third, the approach to collective bargaining in particular, and s. 2(d) in general,articulated in Health Services raises significant problems relating to workability. In my view, theframework established in Health Services is both inherently unstable and is a vehicle for theimposition of judicial policy preferences.[176] I now address each of these problems in turn.A. The Collective Bargaining Right Recognized in Health Services Is Inconsistent With thePurpose of Section 2(d)