View cases - Stewart McKelvey

case at bar (2008 ONCA 760, 92 O.R. (3d) 481). As a result of comments made by the majorityin Health Services, the case proceeded down a completely different path in the Court of Appeal,where the issue was whether union exclusivity, majoritarianism and mechanisms for resolvingbargaining impasses and disputes — all parts of the “Wagner model” on which Canadian labourlaw statutes are based — were required by the Charter.[299] At first glance, the Ontario Court of Appeal’s affirmative response to this question is2011 SCC 20 (CanLII)so far removed from any conclusion reached in Health Services that it seems surprising. Afterall, the majority in Health Services made it crystal clear that no specific model of labour relationsis protected by s. 2(d) of the Charter, as they said (at para. 91): “. . . the right is to a generalprocess of collective bargaining, not to a particular model of labour relations, nor to a specificbargaining method”. By so stating, the majority of this Court were indicating that the Wagnermodel is not enshrined in the Charter. However, considering the predominance of the Wagnermodel in Canadian labour law, it is easy to see how Winkler C.J.O. reached the conclusion thatthe majority in Health Services must have been contemplating exclusivity, majoritarianism andmechanisms for resolving bargaining impasses and disputes at the same time as they discussedthe duty to bargain in good faith. In my view, the holding in Health Services does not have thebroad scope being attributed to it by the majority in the case at bar and, in particular, does notextend to imposing a duty on employers to bargain in good faith. I find that the AEPA isconsistent with this Court’s conclusion in Dunmore and would therefore allow the appeal, but fordifferent reasons than the majority.