View cases - Stewart McKelvey

[323] The AEPA was enacted in 2002 to respond to this Court’s 2001 decision in Dunmorev. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, which held that s. 2(d)protected the right to organize. Dunmore was decided in accordance with the Labour Trilogy,the then operative s. 2(d) paradigm. The Trilogy was widely taken as standing for theproposition that s. 2(d) did not include protection for collective bargaining (ProfessionalInstitute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 22011 SCC 20 (CanLII)S.C.R. 367). The Trilogy was not challenged in Dunmore, and Bastarache J., writing for themajority, was explicit that he was not addressing whether collective bargaining was protectedunder s. 2(d). What was protected, in his view, was the following:I conclude that at minimum the statutory freedom to organize in . . . the [LabourRelations Act, 1995, S.O. 1995, c. 1, Sched. A] ought to be extended to agriculturalworkers, along with protections judged essential to its meaningful exercise, such asfreedom to assemble, to participate in the lawful activities of the association and tomake representations, and the right to be free from interference, coercion anddiscrimination in the exercise of these freedoms. [Emphasis added; para. 67.][324] It is not surprising, therefore, that the 2002 AEPA contains no reference to aprotection which made no appearance on the constitutional stage until 2007. Or that the trialjudge’s decision in 2006 in the case before us, applied the Dunmore “right to organize” templateand found the legislation compliant with s. 2(d) (79 O.R. (3d) 219).[325] But by the time the Court of Appeal heard this case in 2008, Health Services hadbeen decided, creating a completely different jurisprudential universe. That was the new s. 2(d)