View cases - Stewart McKelvey

[305] All that was required by the questions raised in Health Services was a finding thatsince the employees had a constitutional right to engage in associational activities and act incommon to reach common goals, the legislature could not interfere with their right (i) byprohibiting them from addressing certain issues in the collective bargaining process; and (ii) bycancelling negotiated provisions in the agreements and thereby rendering the processmeaningless. By enacting legislation that had prohibited the negotiation of certain issues in the2011 SCC 20 (CanLII)course of Charter-protected associational activities and rendering useless the efforts expended toachieve a negotiated agreement on certain subjects, the legislature had interfered with their right.This conclusion did not depend on the employer’s being under a duty to bargain in good faith.[306] In the case at bar, the issue is similar to the one in Health Services in that it concernslegislative action, but it is not, as the Chief Justice and LeBel J. put it (at para. 99), whether the“AEPA provides a process that satisfies” “the right of an employees’ association to makerepresentations to the employer and have its views considered in good faith”. Although the rightof employees to have their views considered in good faith may well flow from certain commentsmade in Health Services, they do not flow from the issues raised in that case. The duty to act ingood faith is part and parcel of a web of statutory components. It should not be found to be aconstitutional requirement in the instant case.[307] To frame the issue in this case, the AEPA must be situated in its context. The AEPAis the response of the Ontario legislature to this Court’s decision in Dunmore. In that case,agricultural workers had been excluded from the general statutory regime and had suffered fromthe statute’s underinclusiveness. The expanded definition of “freedom of association” that