View cases - Stewart McKelvey

DESCHAMPS J. —[297] Canadian labour law is not static. Over the years, some of the changes in this fieldhave been reflected in judicial decisions, such as those on freedom of association under s. 2(d) ofthe Canadian Charter of Rights and Freedoms. Health Services and Support – FacilitiesSubsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, fed2011 SCC 20 (CanLII)expectations, but it also caused some bewilderment. More importantly, it generated anunnecessary debate about whether a duty to bargain in good faith has been imposed onemployers. I will begin by demonstrating why, in my view, the case at bar can and should beresolved on the basis of the answers this Court actually gave to the questions raised in HealthServices, in which the issue of an employer’s duty to bargain in good faith was not even raised. Iwill then briefly explain why I am of the view that the analytical framework articulated by theCourt in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, should belimited to the context of that case.I. Interpreting Health Services[298] When the case at bar was heard by the Ontario Superior Court of Justice, this Court’sjudgment in Health Services had not yet been released ((2006), 79 O.R. (3d) 219). The issue putto Farley J. at that time was whether the Agricultural Employees Protection Act, 2002, S.O.2002, c. 16 (“AEPA”), was consistent with this Court’s decision in Dunmore. Health Serviceswas released after Farley J.’s judgment, but before the Court of Appeal heard the appeal in the