View cases - Stewart McKelvey

comments were mostly favourable, while Rothstein J. refers to those who were mostlyunfavourable. I disagree with the expansive approach taken by the majority in the case at bar andwith the use they make of Health Services. A more prudent approach, one that would beconsistent with this Court’s jurisprudence on s. 2(d) and with the issues the Court actuallyconsidered in that case, would be to restrict the ratio of Health Services to the questions actuallyraised and the answers actually given in that case.2011 SCC 20 (CanLII)[304] In Health Services, the claimants asked this Court to declare that the government hadinterfered with their right to unite to achieve common goals. While they recognized that undermost Canadian labour law statutes, employers had an obligation to bargain in good faith, theclaimants were not seeking a declaration characterizing this obligation as a constitutional one.Neither the British Columbia Supreme Court nor the Court of Appeal dealt with a duty onemployers to bargain in good faith, because this subject was quite simply not raised. Indeed, itwas in its legislative capacity — not as an employer — that the government had interfered withthe employee’s rights. Therefore, the majority in Health Services did not need to comment on ormake findings in respect of whether the government, as an employer, had a duty to negotiate ingood faith. There was thus no need to impose a Charter-based duty to bargain on employers. Afortiori, there was no need to import, together with this duty, the good faith element that is one ofthe hallmarks of the Wagner model and that inevitably entails a number of statutory components.I cannot therefore agree with the majority in the case at bar that Health Services imposesconstitutional duties “on governments as employers” (para. 73).