View cases - Stewart McKelvey

association that included an obligation on the part of employers to engage in collectivebargaining: “Beyond any doubt, there was no duty imposed on an employer to bargain with aunion — even if, contrary to all legal indications, there was an effectively protected right tobelong to a union and to participate in a strike” (“Freedom of Association”, at p. 191).[244] Not only did courts not recognize such a bargaining right in the period before theadoption of the Wagner model in Canada, but they often issued injunctions against labour’s2011 SCC 20 (CanLII)attempts to bargain collectively. Professor Etherington writes:. . . prior to the adoption of statutes in Canada modeled on the Wagner Act, the bestour unions could hope for was a laissez-faire attitude that would allow them to usestrikes to force employers to bargain. More often than not during that period theywere even disappointed in that hope by courts that were too willing to use theirinjunctive powers at common law to prevent unions from taking collectiveeconomic action against employers to compel them to bargain collectively. In thatcontext, it may be a hollow claim to even assert that our law or society recognizedaccess to collective bargaining in any sense as a fundamental right or freedom, but itis clearly not accurate to assert that it recognized a legal right to engage in collectivebargaining that included an obligation on the part of employers also to engage inbargaining when approached by unions. [Emphasis added; p. 727.][245] The Chief Justice and LeBel J. take issue with my focus on whether, historically, theright to collective bargaining was consistently guaranteed by the legal system, noting that thequestion should instead be “whether Canadian society’s understanding of freedom ofassociation, viewed broadly, includes the right to collective bargaining in the minimal sense ofgood faith exchanges affirmed in Health Services” (para. 90 (emphasis in original)). Withrespect, this bare assertion, without any evidence or explanation as to what Canadian society’s