View cases - Stewart McKelvey

takes time before the unworkability of a decision emerges. I disagree. Winkler C.J.O.’sconclusion that a constitutional right to meaningful collective bargaining must includeconstitutionalizing elements of the Wagner model provides strong support for the propositionthat, without these protections, compulsory collective bargaining is unworkable.(2) The Untenable Distinction Between Substance and Process2011 SCC 20 (CanLII)[263] Unworkability also arises from the majority’s instruction in Health Services toprotect the process of collective bargaining without also protecting its substantive fruits. InHealth Services, the majority posited that this distinction was entirely possible (para. 29). In myview, this distinction is unworkable because it is impossible to divorce the process of collectivebargaining from its substantive outcomes. There are three reasons.[264] First, as I have already discussed, Health Services itself did not respect thisdistinction since the majority granted constitutional protection to “significant” terms of thecollective agreements at issue in that very case. The majority found that the challenged B.C.legislation breached s. 2(d) not just by limiting future bargaining but also by invalidating existingcollective agreements and consequently undermining the past bargaining process that formed thebasis for these agreements. Therefore, the application of the collective bargaining right in HealthServices had the result of protecting the substance of those agreements.[265] Second, the duty to bargain in good faith cannot be described as only a “procedural”guarantee, as the Chief Justice and LeBel J. do in this case and as the majority did in Health