View cases - Stewart McKelvey

(2) Section 2(d) Protects Freedoms Rather Than Rights[188] Second, the majority concluded in Health Services that s. 2(d) imposes a duty tobargain in good faith. It explained this conclusion at para. 90 finding that “the employees’ rightto collective bargaining imposes corresponding duties on the employer” requiring “bothemployer and employees to meet and to bargain in good faith, in the pursuit of a common goal ofpeaceful and productive accommodation”.2011 SCC 20 (CanLII)[189] Thus, Health Services stands for the proposition that the right to collectivebargaining includes an entitlement to have “meaningful” influence over working conditions. Inother words, the right includes an assurance that a real dialogue will take place between anemployee association and the employer. Such assurance can only be provided if the employer isunder a duty to engage with representations made by the association and make a good faithattempt to bargain to pursue the goal of accommodation. In the absence of such a duty, theemployer would be free to refuse to negotiate with the employee association. Thus, according toHealth Services, if s. 2(d) protected only the ability of workers to make collective representationsand did not impose a duty on the employer to bargain in good faith, it would fail to protect theright to collective bargaining.[190] In my view, this proposition suffers from an important defect: it transforms s. 2(d)from a freedom into a “positive” right by imposing an obligation to act on third parties (i.e. theemployer). There is a difference between saying that an individual has the freedom or liberty todo something, on the one hand, and saying that he or she has the right to do it, on the other. A