View cases - Stewart McKelvey

[300] My reading of Health Services is that it represents a step forward in the recognitionof collective activities: joining individual voices through collective bargaining to achievecommon goals is protected by the Charter. In that case, I endorsed the view, which I still hold,that:(1) the constitutional right to collective bargaining concerns the protection ofthe ability of workers to engage in associational activities, and their capacity2011 SCC 20 (CanLII)to act in common to reach shared goals related to workplace issues andterms of employment;(2) the right is to a process of collective bargaining — it does not guarantee acertain substantive or economic outcome or access to any particularstatutory regime; and(3) the right places constraints on the exercise of legislative powers in respect ofthe collective bargaining process. [para. 174][301] This incremental interpretation of s. 2(d) of the Charter was sufficient to dispose ofthe questions raised in Health Services and is also sufficient to dispose of those raised in thisappeal. It leaves it up to the legislatures to make the difficult policy choices that must be made inorder to achieve economic balance in labour law. This interpretation is also consistent with therestraint courts show in resolving the issues raised by the parties before them. The approachshould not differ in cases involving constitutional interpretation.