View cases - Stewart McKelvey

[241] It is true that there is a long-standing practice of Canadian workers associating forthe purpose of bargaining collectively with their employers. Likewise, it is true that at least sincethe Trade Unions Act of 1872 workers enjoyed a legal freedom to associate for the purpose ofbargaining collectively with their employers without being prosecuted or sued for simply doingso.[242] However, the legal rights of organization, which imposed duties of non-interference2011 SCC 20 (CanLII)on employers, and collective bargaining, which imposed good faith duties of negotiation onemployers, did not exist prior to their enactment in statutes.The establishment of a legal right for workers to associate for the purposes offorming a trade union, in the sense that employers are subject to a concomitant dutynot to interfere with their organizing, however, can only be traced to the freedom oftrade union association legislation passed in the 1930s, while the legal right forworkers to bargain collectively, in the sense that employers have a positive duty toparticipate in a process of good faith negotiation with their workers’ chosenrepresentatives, first appeared in British Columbia and Nova Scotia statutes enactedin 1937, but only became generalized for private sector workers in the 1940s and forpublic sector workers in the 1960s and 70s.Thus while the court is on firm historical ground when it states in paragraph 66that collective bargaining (understood here as a social practice) has long beenrecognized in Canada (in the sense that it could neither be repressed nor ignored) andthat “historically it emerges as the most significant collective activity through whichfreedom of association is expressed in the labour context,” its further claim that aprocedural right to collective bargaining has long been recognized as fundamental inCanada prior to 1982 is deeply problematic as a statement of historical fact.(Tucker, at p. 166 (emphasis in original))[243] Professor Langille also takes the position that Canada’s labour history does notreveal an acceptance by our common law courts or our legislatures of a concept of freedom of