View cases - Stewart McKelvey

[355] Even assuming that there is a rational connection between at least the secondobjective and the limitation, I see the minimal impairment branch of the Oakes test as beingdeterminative. Under this step we ask whether there are “less harmful means of achieving thelegislative goal” (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R.567, at para. 53). The AEPA has an absolute exclusion of any protection for a process ofcollective bargaining: all agricultural workers, in all sectors of agriculture, no matter the size and2011 SCC 20 (CanLII)nature of the agricultural enterprise, are precluded from exercising their s. 2(d) rights. If thegovernment has impeded those rights more than is reasonably necessary to achieve its statedobjectives, then this absolute exclusion is not constitutionally justified.[356] The first governmental objective of the absolute exclusion is the protection of familyfarms. Is a one-size-fits-all exclusion responsive to protecting family farms? It seems to meclear that less harmful means than outright exclusion are readily available to achieve theobjective. Two provinces, for example, Quebec and New Brunswick, have specific exemptionsfor farms employing less than three (Labour Code, R.S.Q., c. C-27, s. 21) or five (IndustrialRelations Act, R.S.N.B. 1973, c. I-4, s. 1(5)(a)) workers.[357] It is also worth remembering that we are dealing with a highly diversified sector,only some of which consists of family farms. As Bastarache J. noted, there is an “increasingtrend . . . towards corporate farming and complex agribusiness” (Dunmore, at para. 62). Rol-Land Farms, for example, is a mushroom farm that employs between 270-300 workers. Thenature of this kind of farm, as described in Wellington Mushroom Farm, [1980] O.L.R.B. Rep.