View cases - Stewart McKelvey

[351] I acknowledge that different models of labour relations exist globally, some of whichdo not recognize the principle of majoritarian exclusivity (Clyde W. Summers, “ExclusiveRepresentation: A Comparative Inquiry into a ‘Unique’ American Principle” (1998-1999), 20Comp. Lab. L. & Pol’y J. 47; Roy J. Adams, “Prospects for Labour’s Right to BargainCollectively After B.C. Health Services” (2009), 59 U.N.B.L.J. 85). These models, however,have been developed in entirely different historical contexts and systems of collective bargaining2011 SCC 20 (CanLII)and have yet to be seriously road-tested in the Canadian context outside of the constructionindustry in Quebec. This is not to say that there is no room for innovation in the modalities ofthe Canadian labour relations model. But to “innovate” by eliminating a fundamental protectionfor the most vulnerable of workers is nullification, not innovation.[352] Can the absence of these statutory protections be justified under s. 1 of the Charter?In my view they cannot.[353] Chief Justice Winkler found that the relevant objectives of the rights limitation —the failure to provide agricultural workers with the necessary statutory protections to exercise theright to bargain collectively — were “to protect the family farm and farm production/viability”(para. 122).[354] These were found by this Court to be pressing and substantial objectives in Dunmoreand are conceded to reach the necessary threshold in our case.