View cases - Stewart McKelvey

[217] In response to this argument, the Chief Justice and LeBel J. write that HealthServices did not hold that “labour contracts could never be interfered with by legislation” (para.76). However, if as Health Services holds, it is unconstitutional for a statute to legislativelynullify “significant contractual terms”, then it must logically follow that those “significantcontractual terms” have been elevated above statutes. The actual effect of Health Services isquite the opposite from what my colleagues assert it to be.2011 SCC 20 (CanLII)[218] My view is consistent with that of Professor Hogg who observed that “[t]his rulingelevated collective agreements above statutes in the hierarchy of laws, and granted them virtuallythe same status as the provisions of the Charter itself”: p. 44-9. Indeed, in the Reference re ss.193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the “ProstitutionReference”), at p. 1171, Justice Lamer (as he then was) explicitly rejected the idea that aconstitutional guarantee safeguarding freedom of contract was included under the CanadianCharter.(5) Courts Have Afforded the Legislature Significant Deference in theApplication of Section 2(d) to the Field of Labour Relations[219] A final difficulty with the approach to s. 2(d) taken in Health Services is that itexplicitly rejected judicial deference by judges towards the legislature in labour relations.Indeed, the majority indicated that Courts had previously taken an “overbroad view” of judicialdeference: Health Services, at para. 26. While judicial deference has its limits, the generalapproach of judicial deference in the field of labour relations is well supported by precedent andis sound in principle. I am of the view that the reasons for judicial deference strongly militate