View cases - Stewart McKelvey

argain in good faith change these measures and constrain the range of negotiating positionsavailable to the employer and thus have a substantive impact on the terms of employment.[268] Finally, for a duty to bargain in good faith not to be an illusory benefit, there must beboth a way of dealing with bargaining impasses as well as an effective remedy for persistentbreaches of a duty to bargain in good faith. The first requires that there be some defaultmechanism for resolving the dispute in case an impasse is reached — such as striking or binding2011 SCC 20 (CanLII)arbitration — while the second may require, in extreme circumstances, the imposition by anarbitrator of particular terms of a collective agreement: W. B. Rayner, Canadian CollectiveBargaining Law (2nd ed. 2007), at pp. 349-55. Each of these goes well beyond a mere processand results in the protection of a particular substantive outcome.[269] The majority’s inability to separate substance and process, and the consequentconstitutionalization of collective bargaining terms demonstrates the unworkability of thedistinction between substance and process asserted in Health Services. This unworkability isfurther underlined by the fact that the collective bargaining itself is an outcome for which partiesorganize and does affect substantive outcomes. For these reasons, as well as the unenforceabilityof the bare right to good faith bargaining, the ruling in Health Services is unworkable.V. The Charter Protects a Voluntary Association of Workers Whose Objectives Are to ImproveWages and Working Conditions[270] As I have explained through these reasons, I do not accept that s. 2(d) protects a rightto collective bargaining. I am, however, of the view that s. 2(d) does protect a voluntary