View cases - Stewart McKelvey

The question at stake in this appeal should thus be left to the political process.Such a solution would be consistent with the jurisprudential attitude of the Court thatwas summarized above. It retains a balance in the application of the Charter. Itleaves the legal management of labour relations to Parliament and legislatures aswell as to the parties to labour agreements, as the majority of the Court has heldconsistently since the labour law trilogy of 1987. . . .This limited and prudentapproach to court interventions in the field of labour relations reflects a properunderstanding of the functions of courts and legislatures. [Emphasis added; para.239.]The principle of deference provides a reason for choosing a more restrained version of s. 2(d)2011 SCC 20 (CanLII)when the Court is faced with competing visions of what s. 2(d) protects.[222] My colleagues imply that my view on deference creates a “judicial ‘no go’ zone” orcreates a “Charter-free zone” for labour relations (paras. 78-80). That is not a correctunderstanding of my position. Clearly if legislatures, for example, chose to enact legislation thatpermitted discrimination in labour relations or precluded the ability to form an employeeassociation, that legislation would be subject to judicial review for being non-compliant with theCharter. In matters of labour relations, the Charter still applies. If my colleagues believe that myview on deference creates a “Charter-free zone”, they have misunderstood my reasons.[223] In my opinion, the principle of judicial deference in the field of labour relations isrooted in two underlying concerns. The first of these is that the Court is ill-equipped to carry outthe requisite balancing of interests in the labour relations context. Since McIntyre J.’s commentsin the Alberta Reference, this Court has recognized that labour relations are an “extremelysensitive subject” premised on “a political and economic compromise between organized labour— a very powerful socio-economic force — on the one hand, and the employers of labour — an