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View cases - Stewart McKelvey

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voluntary. This would hardly meet the requirement, according to the Chief Justice and LeBel J.,that collective bargaining be mandatory.[260] Winkler C.J.O. also explained that a collective bargaining process that lacks thefeature of majoritarian exclusivity would be “impractical” and lead to “chaos”:It is impractical to expect employers to engage in good faith bargaining discussionswhen confronted with a process that does not eradicate the possibility ofirreconcilable demands from multiple employee representatives, purporting tosimultaneously represent employees in the same workplace with similar jobfunctions. It is not overstating the point to say that to avoid chaos in the workplace tothe detriment of the employer and employees alike, it is essential that arepresentative organization be selected on a majoritarian basis and imbued withexclusive bargaining rights. [para. 92]2011 SCC 20 (CanLII)[261] Winkler C.J.O.’s concerns present a significant problem that the Chief Justice andLeBel J. do not address in their reasons. They limit constitutionalization to collective bargainingimposing a duty on employers to bargain in good faith. The reasons of the Chief Justice andLeBel J. provide no explanation for why Winkler C.J.O. is wrong. As the majority in Doucet-Boudreau said in discussing minority language educational rights: “A purposive approach toremedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium:where there is a right, there must be a remedy” (para. 25). I cannot agree that a right can beworkable without the imposition of an appropriate remedy.[262] The Chief Justice and LeBel J. say that “[i]t is premature to argue that the holding inHealth Services, rendered four years ago, is unworkable in practice” (para. 83). They say that it

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