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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the Ontario statutorylabour relations framework under the Agricultural Labour Relations Act (“ALRA”).When the ALRA was repealed a year after it was brought into force, the United Foodand Commercial Workers Union of Canada (“UFCW”) brought a successful challengein the Supreme Court of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.