View cases - Stewart McKelvey

esulted from Health Services has no bearing on the protection the Ontario legislature mustprovide to agricultural workers. The reason is that Dunmore purported to impose on the Ontariolegislature an obligation to provide agricultural workers with more than what had until then beenconsidered to be included in the scope of the constitutionally protected right to associate. Indeed,the decision in Dunmore, which was consistent with Delisle v. Canada (Deputy AttorneyGeneral), [1999] 2 S.C.R. 989, at para. 10, was based on the premise that s. 2(d) “exists2011 SCC 20 (CanLII)independently of any legislative framework”. However, it was held that agricultural workersshould be afforded greater protection because they were vulnerable and were substantially unableto exercise their constitutional right without the support of a legislative framework.[308] As I explained above, in my view, the effect of Health Services is that freedom ofassociation includes the freedom to engage in associational activities and the ability ofemployees to act in common to reach shared goals related to workplace issues and terms ofemployment. This delineation of the scope of freedom of association does not entail a moreexpansive protection than the legislative framework mandated by Dunmore for the agriculturalworkers. Therefore, if the AEPA complies with Dunmore, it will necessarily comply with theCharter. To answer the question in the case at bar, there is no need to import a duty to bargain ingood faith. I cannot therefore agree with the statement of the majority in the case at bar (at para.104) that, “[s]ince Health Services, it has been clear that [a meaningful exercise of the right toassociate] requires employers to consider employee representations in good faith.”[309] I would be remiss were I not to mention that the observation of the majority inHealth Services (at para. 88) that, owing to s. 32 of the Charter, “a private employer is not