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View cases - Stewart McKelvey

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against constitutionalizing the right to collective bargaining. In my respectful opinion, themajority erred in Health Services by removing decision-making power on this question fromParliament and the provincial legislatures.[220] For nearly twenty years between the Trilogy and Health Services, a majority of thisCourt was consistently of the view that judges should defer to legislators on labour relationsmatters. As discussed by LeBel J. at paras. 156-62 of Advance Cutting & Coring, this position2011 SCC 20 (CanLII)stemmed from a recognition that the management of labour relations requires a delicate exercisein reconciling conflicting values and interests and that the political, social and economicconsiderations that this exercise raises lie largely beyond the expertise of the courts. Thisposition was also in line with history. The law of collective bargaining, as it has developed inCanada since the Depression and the Second World War, as well as union and employer conflictslike strikes and lockouts, have been subject to legislative control based on government policyrather than judicial intervention.[221] Beginning with the decisions in the labour Trilogy and continuing through PIPSC,Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, Delisle, and AdvanceCutting & Coring, this Court has consistently deferred to elected legislatures on issues of labourrelations. In Advance Cutting & Coring, Justice LeBel, writing for himself and Gonthier andArbour JJ., described the Court’s deferential approach as a “non-intervention policy” (para. 160).LeBel J. upheld the legislative regime at issue in the appeal:

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