View cases - Stewart McKelvey

constitutional law the particular framework according to which all Canadian labour relationsmust be structured for the indefinite future. Parliament and the provincial legislatures should notbe precluded from fashioning appropriate labour relations regimes that are responsive to therelevant socio-economic contexts.[226] In Health Services, this Court departed from a long-standing course of judicialdeference in the field of labour relations. The majority intervened to adjust aspects of the2011 SCC 20 (CanLII)balance of power between unions, employers and individual employees, and, as a consequence,constitutionalized prominent features of the Wagner model under s. 2(d) of the Charter, namelycollective bargaining.[227] Although the majority insisted that it was not enshrining a particular model of labourrelations, and the Chief Justice and LeBel J. say that such a conclusion was “repeatedly rejected”(para. 77), I believe that such a conclusion is inescapable. As my colleague Deschamps J.observes, the duty to negotiate in good faith enshrined by Health Services “is one of thehallmarks of the Wagner model and that inevitably entails a number of statutory components”(para. 304). Professor Hogg writes:The majority . . . claimed that it was not constitutionalizing “a particular model oflabour relations”. But that is exactly what it was doing: North American labourrelations regimes are based on the American Wagner Act of 1935. The Wagnermodel of compulsory collective bargaining with a single union compulsorilyrepresenting all members of a bargaining unit has not been adapted outside theUnited States and Canada, and, even in the United States, compulsory arbitration orother wage-setting mechanisms often replace collective bargaining in the publicsector. Presumably, only compulsory collective bargaining on the Wagner modelwill now pass muster in Canada. The majority even claimed that the Court had been