View cases - Stewart McKelvey

First, a review of the s. 2(d) jurisprudence of this Court reveals that the reasonsevoked in the past for holding that the guarantee of freedom of association does notextend to collective bargaining can no longer stand. Second, an interpretation of s.2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’shistoric recognition of the importance of collective bargaining to freedom ofassociation. Third, collective bargaining is an integral component of the freedom ofassociation in international law, which may inform the interpretation of Charterguarantees. Finally, interpreting s. 2(d) as including a right to collective bargaining isconsistent with, and indeed, promotes, other Charter rights, freedoms and values.[Emphasis added.]2011 SCC 20 (CanLII)In this section each of these contentions is addressed.(1) The Continuing Validity of Past Precedents on the Scope of Section 2(d)[233] I have already dealt with the substance of the first proposition in the course ofexplaining why Health Services was wrong to overrule the approach to s. 2(d) of the Charterembodied in the prior jurisprudence, and I need not discuss it further here.(2) Canadian Labour History Does Not Support ConstitutionalizingCollective Bargaining Rights[234] The second reason advanced by the majority in Health Services is that collectivebargaining has historically been recognized in Canada as an integral component of freedom ofassociation: see para. 25. The view that a right to collective bargaining which includes a duty onemployers to bargain in good faith is a pre-statutory feature of Canadian labour law contradictsestablished accounts of the history of labour relations in Canada.