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View cases - Stewart McKelvey

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equally powerful socio-economic force — on the other”: see Alberta Reference, at p. 414, perMcIntyre J. While the courts are responsible for safeguarding the ability of individuals to docollectively that which they have the right to do as individuals, the judiciary is ill-equipped toengage in fine adjustments to the balance of power between labour and management.[224] The Chief Justice and LeBel J. write that this Court has “distanced itself” from theapproach of McIntyre J. in the Alberta Reference, and now deals with deference under s. 1, rather2011 SCC 20 (CanLII)than in outlining the scope of s. 2(d) (para. 81). With respect, I think this point is debatable.While that may have been the approach adopted by the majority in Dunmore, there are a numberof examples of this Court dealing with deference at the s. 2(d) stage of the analysis. Forexample, LeBel J. dealt with deference at the s. 2(d) stage of the analysis in Advance Cutting &Coring. Another example is Delisle, where Bastarache J. for the majority (writing on behalf ofGonthier, McLachlin (as she then was), and Major JJ.), dealt with the concept of deference underthe s. 2(d) stage of the analysis. Bastarache J. wrote that he shared the opinion of McIntyre J. inthe Alberta Reference, writing that “[f]reedom of association does not include the right toestablish a particular type of association defined in a particular statute; this kind of recognitionwould unduly limit the ability of Parliament or a provincial legislature to regulate labourrelations” (Delisle, at para. 33).[225] The second underlying concern justifying judicial deference in the area of labourrelations is that courts should avoid extending constitutional protection to a particular statutorymodel of labour relations. Different statutory models of labour relations may be appropriate indifferent socio-economic contexts, and the courts should avoid defining as a matter of

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