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<strong>McKelvey</strong>, St. John’s.Solicitors for the intervener the Canadian Employers Council: <strong>Stewart</strong>Solicitors for the interveners the Coalition of BC Businesses and theBritish Columbia Agriculture Council: Heenan Blaikie, Vancouver.Solicitors for the interveners Justicia for Migrant Workers and the2011 SCC 20 (CanLII)Industrial Accident Victims Group of Ontario: Pieters Law Office, Toronto.Solicitors for the intervener the Canadian Labour Congress: SackGoldblatt Mitchell, Toronto.Solicitors for the intervener the Canadian Police Association: Paliare,Roland, Rosenberg, Rothstein, Toronto.Solicitors for the intervener the Canadian Civil LibertiesAssociation: Green & Chercover, Toronto.
CLIENT UPDATELABOUR & EMPLOYMENT LAW GROUPContact usCharlottetown, Prince Edward Island65 Grafton StreetCharlottetown, PE, CanadaC1A 1K8Telephone: 902.892.2485Fax: 902.566.5283charlottetown@stewartmckelvey.comFredericton, New Brunswick600 - 77 Westmorland StreetFredericton, NB, CanadaE3B 6Z3Telephone: 506.458.1970Fax: 506.444.8974fredericton@stewartmckelvey.comHalifax, Nova ScotiaPurdy’s Wharf Tower One900 - 1959 Upper Water StreetHalifax, NS, CanadaB3J 3N2Telephone: 902.420.3200Fax: 902.420.1417halifax@stewartmckelvey.comMoncton, New BrunswickBlue Cross Centre601 - 644 Main StreetMoncton, NB, CanadaE1C 1E2Telephone: 506.853.1970Fax: 506.858.8454moncton@stewartmckelvey.comSaint John, New BrunswickBrunswick House1000 - 44 Chipman HillSaint John, NB, CanadaE2L 2A9Telephone: 506.632.1970Fax: 506.652.1989saint-john@stewartmckelvey.comSt. John’s, Newfoundland and LabradorCabot Place1100 - 100 New Gower StreetSt. John’s, NL, CanadaA1C 6K3Telephone: 709.722.4270Fax: 709.722.4565st-johns@stewartmckelvey.comONTARIO (ATTORNEY GENERAL)V. FRASEREmployers, unions, governments and courts have grappled with the implicationsof the Supreme Court of Canada decision in Health Services, which extended thefreedom of association granted in section 2(d) of the Charter to protect the processof meaningful collective bargaining. The Supreme Court of Canada consideredthe case for the first time in the very recent decision of Ontario (Attorney General)v. Fraser. The Supreme Court of Canada overturned the Ontario Court of Appealdecision and found the legislation governing agricultural workers in Ontario to beconstitutional. Health Services has been left intact, but with a dispensing of some ofthe more outlandish expectations which it has generated within the labour movement,and emphasis on the “minimal’ nature of the right afforded.FactsOntario agricultural workers enjoyed a short lived inclusion in the Ontario statutorylabour relations framework under the Agricultural Labour Relations Act (“ALRA”).When the ALRA was repealed a year after it was brought into force, the United Foodand Commercial Workers Union of Canada (“UFCW”) brought a successful challengein the Supreme Court of Canada. In the 2001 case Dunmore, the Supreme Court ofCanada held that the government had a positive duty to enact legislation that wouldprotect agricultural workers’ freedom to organize, more specifically, one that wouldenable a process whereby agricultural workers could meaningfully pursue commonworkplace goals. The Agricultural Employee Protection Act (“AEPA”) was enactedas a result. The AEPA granted new rights to agricultural workers, including the abilityto form employees’ associations who could make representations to employersregarding the workers’ terms and conditions of employment. The employer wasrequired to allow the representations to be made, and to read or listen to them.However, agricultural workers in Ontario remained excluded from the LabourRelations Act (“LRA”). As a result, the UFCW mounted a constitutional challengeagainst the AEPA in the Ontario courts seeking to have farm workers enjoy the sameability to unionize as other workers under the LRA.The Trial Division dismissed the claim on the basis that the AEPA provided theminimum requirements set out in Dunmore. Prior to the Court of Appeal decision,the Supreme Court of Canada released its decision in Health Services. The Courtof Appeal consequently allowed the appeal and agreed with UFCW that the AEPAdid not provide the protection required to enable agricultural workers to bargaincollectively in a meaningful way. The Court of Appeal held that the section 2(d) right toa process of collective bargaining required the conventional labour relations regimeprotections, namely that: each bargaining unit is represented by one bargainingagent (a principle known as majoritarian exclusivity); a statutory process for disputeresolution; and, a statutory duty to bargain in good faith. In effect, the Court of Appealconstitutionalized one particular labour relations regime – the standard Wagner Actmodel, which forms the basis for labour relations statutes in Canada. According tothe Ontario Court of Appeal, only that model would pass Charter scrutiny.
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CITATION: Brito v. Canac Kitchens,
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Page: 3a) What, if any, period of n
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Page: 5[18] Having regard for Canac
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CITATION: Chandran v. National Bank
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Page: 3against him by the employees
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Page: 5the employees who raised the
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Page: 7had no obligation under the
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Page: 9[37] Mr. Chandran’s last j
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Page: 11large number of unsolicited
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Page: 13disciplinary letter against
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Page: 15evidence of acrimony betwee
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Page: 17Toronto office. He admitted
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Page: 19increase in the quantum of
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Page: 21Weissach Motors and MCL Mot
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Page: 23“There can be no catalogu
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Page: 25[123] On the basis of the a
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QUEEN’S BENCH FOR SASKATCHEWANDat
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- 3 -meet his financial obligations
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- 5 -[11] On June 28, 2002, without
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- 7 -and a capital gain of $23,874.
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- 9 -may have delayed commencement
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- 11 -had purchased late in 2001 an
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- 13 -[34] Stated in another way, w
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- 15 -supervised by the plaintiff.
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- 17 -purchasing agent for a compan
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- 19 -sales, conducting retail sale
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- 21 -employment with Bennett Dunlo
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- 23 -[54] The issue was taken up b
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- 25 -59 ... Damages attributable t
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- 27 -not have any information rega
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- 29 -[66] Both Mr. Coppola and Mr.
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- 31 -expense accounts which contai
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- 33 -by the plaintiffs in the abov
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- 35 -Pre-judgment interest[76] Mr.
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- 37 -the six month notice period.
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SummaryFollowing concerns raised by
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2REASONS FOR DECISIONIntroduction[1
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4agreed statement) and also by test
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6e. that it was not his responsibil
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8Department of Labour. The firm adv
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10that “the buck stopped with me
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12without any knowledge of this and
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14[41] Various other cases, cited i
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16[49] There is nothing wrong with
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182 The foundation of this Act is t
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20(b) the co-operative auditing of
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- 2 -The Honourable Justice Turnbul
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- 2 -concluded that, while the mill
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- 4 -[6] The union’s position is
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- 6 -it must be reasonable; (3) it
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- 8 -the majority relied in part on
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- 10 -Taken with the low testing ra
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- 12 -should depart from those prec
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- 14 -IV.Issues - AnalysisA. Introd
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- 16 -distinguished any analogy bet
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- 18 -industry. The lead case appea
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- 20 -rather than a reactive, appro
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- 22 -employers of the burden of de
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- 24 -Canada, Local 0004, supra. Al
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- 26 -C. Summary Observations on th
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- 28 -hazardous materials to variou
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IN THE COURT OF QUEEN’S BENCH OF
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2assistance and remain employed. Ki
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4a) there is a strong prima facie c
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6discrimination. The letter also st
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8applicable guidelines. He was give
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10Correct Legal Test[15] Killam’s
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12position. However, because of the
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Page: 2FACTS[2] The respondent is a
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Page: 4REASONS OF THE APPLICATION J
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Page: 6trade, certain of such coven
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Page: 8[17] It is convenient to rep
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Page: 10duties for the Company or w
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Page: 12[30] Effectively, because t
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SUPREME COURT OF NOVA SCOTIACitatio
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Page: 341. In every proceeding comm
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Page: 5[8] There is ample case auth
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Page: 7some amount be awarded for p
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NOTE: This document is subject to e
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2011 SCC 20File No.: 32968.2009: De
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allowed the appeal and declared the
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established. There is no concrete e
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Section 5 of the AEPA, correctly in
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pursue, rather than protecting the
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expression under s. 2(b), so too sh
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Nor did invoking Charter values in
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Per Deschamps J.: The holding in He
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from the legislation was unequivoca
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KMart Canada Ltd., [1999] 2 S.C.R.
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By Abella J. (dissenting)Health Ser
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Adams, Roy J. “Prospects for Labo
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International Labour Organisation.
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Gaétan Migneault and Michelle Brun
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TABLE OF CONTENTSParagraphReasons o
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(b) Qualitative Differences Between
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yThe judgment of McLachlin C.J. and
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majority of this Court found a brea
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[10] The UFCW also attempted to bar
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[14] With respect to the particular
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employees from a collective bargain
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and to realize common purposes” (
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(b) Dunmore[26] This Court’s deci
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support discredited the organizing
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[34] Dunmore established that claim
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[38] The decision in Health Service
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[42] The Court in Health Services e
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impugned law or state action has th
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[51] In our view, the majority deci
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Indeed, the fact that Health Servic
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[64] Consistent with this framework
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must not depart from the context of
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ealize common purposes (emphasis ad
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LeBel J., written on behalf of a mi
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(ix) The Argument on Academic Criti
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given a generous and purposive inte
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trade unions should negotiate in go
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[101] Sections 5(6) and (7) are cri
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[107] These considerations lead us
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protections would be inappropriate
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3. Does s. 3(b.1) of the Labour Rel
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of s. 2(d) employers “must engage
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per Dickson C.J. in dissent; R. v.
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3. A prior decision that creates un
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[137] Professor Debra Parkes has su
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[140] In the case of Health Service
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[145] Third, the constitutionalizat
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“recognized that under most Canad
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constitutionalize collective bargai
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[159] In addition, the Court was ag
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or effect of a measure when determi
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. . . the state must not substantia
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[173] First, the collective bargain
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ight to bargain because employers a
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incapable of being performed by an
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(2) Section 2(d) Protects Freedoms
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[193] The Chief Justice and LeBel J
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as described in Health Services, it
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[204] Health Services rejected the
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associations must receive identical
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Health Services would in fact be co
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[217] In response to this argument,
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The question at stake in this appea
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constitutional law the particular f
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can, then we must seriously questio
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[235] The labour history offered in
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[241] It is true that there is a lo
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understanding of freedom of associa
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The voluntary nature of collective
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equirements it finds to the case be
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Page 307 and 308: obligations, and Charter values —
Page 309 and 310: [279] Nonetheless, the Chief Justic
Page 311 and 312: [283] It is true, as my colleagues
Page 313 and 314: They base their view on a statement
Page 315 and 316: . . . the freedom to work for the e
Page 317 and 318: case at bar (2008 ONCA 760, 92 O.R.
Page 319 and 320: [302] As the majority in the instan
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Page 323 and 324: ound” by s. 2(d) seems to have be
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Page 327 and 328: cases in which the vulnerability of
Page 329 and 330: [323] The AEPA was enacted in 2002
Page 331 and 332: 10-1920; Donald D. Carter et al., L
Page 333 and 334: Agriculture and Food, the Honourabl
Page 335 and 336: activities of the “employees’ a
Page 337 and 338: [346] The reason for the protection
Page 339 and 340: [351] I acknowledge that different
Page 341 and 342: May 813, does “not differ in any
Page 343 and 344: argaining, including exclusivity, b
Page 345 and 346: accordance with a bargaining regime
Page 347 and 348: 5. (1) The employer shall give an e
Page 349: Solicitor for the intervener the At
Page 369 and 370: SUPREME COURT OF NOVA SCOTIACitatio
Page 371 and 372: Page: 3failure to observe, perform
Page 373 and 374: Page: 5offences under the Immigrati
Page 375 and 376: Page: 7(5) Interest was payable on
Page 377 and 378: Page: 910.08 Should there be a disa
Page 379 and 380: Page: 11that the arbitration in que
Page 381 and 382: Page: 13[31] In Knox v. Conservativ
Page 383 and 384: Page: 15The Applicants should not b
Page 385 and 386: the court refuses to review the arb
Page 387 and 388: Page: 19(d) the composition of the
Page 389 and 390: Page: 21[49] The Applicant states t
Page 391 and 392: Page: 23[55] In addition, the Respo
Page 393 and 394: Page: 2577.06 (1) Party and party c
Page 395 and 396: :" .. "Schedule AIN THE MATTER OF A
Page 397 and 398: ., ....3OVERVIEWTheClaimant, Ms. Co
Page 399 and 400: ....5The Companybegan business. Inc
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7Subsequently the Jennifer Allan bu
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9She was then given a letter dated
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· ,111. Ms. Cormier knowingly cont
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13Mr. Nordqvist testified that Ms.
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15Ms. Cormier decided to set up suc
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"17ofthat because of difficulties M
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,.19Ms. Carter was invited to a mee
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. .,'21I am also satisfied that the
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23call from Ms. Cormier that Revenu
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,. ."25There is also evidence that
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· . ,27Ms. Gallant did no scheduli
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. \. .. ~..29Ms. Cormier testified
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. '...31the files relating to some
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. ",.'933Ms. Cormier testified that
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...35environment including any lack
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.'37In the year 2000, there was ano
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..39identified anything that she wa
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" .' .,.\1.·....l -,1'.• ,~.,.".
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