View cases - Stewart McKelvey

their employers, through an employees’ association, respecting the terms and conditions of theiremployment; and (5) the right to protection against interference, coercion and discrimination inthe exercise of their rights. Farley J. pointed out that Dunmore did not require the “legislation[to] incorporate a complete panoply of collective bargaining rights” (para. 22) and found that theimpugned legislation met the standards established in Dunmore. I agree with Farley J., and Irespectfully disagree with the Court of Appeal’s interpretation.2011 SCC 20 (CanLII)[312] Since Dunmore remains central to this appeal, I must comment briefly on theapproach taken in that case.II. Approach From Dunmore[313] In Health Services (at para. 176), I voiced concerns about the majority’s adoption ofa criterion used in Dunmore to determine whether the government had infringed a Charter right.Even though both cases are based on compelling facts, principles should not be imported fromone context into another that is not analogous to it. As I explained above, a similar unwarrantedimportation of principles can be observed in the case at bar. But there is more.[314] It is helpful to recall that, as noted by Judy Fudge, “[a]t issue in Dunmore was thetotal exclusion of agricultural workers in Ontario from any form of labour legislation thatprotected them against employer retaliation from joining and participating in a trade union. Theunion did not ask for collective bargaining rights” (“The Supreme Court of Canada and the Right