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IN THIS PAPER we discuss the scope of section 2(d) of the Canadian Charter of Rights and Freedoms in the labour context, with a particular focus on the right to organize and bargain collectively in the jurisprudence of the Supreme Court of Canada. At the outset we briefly review the evolution of s. 2(d) jurisprudence from the formative years of the Charter to today. The scope of s. 2(d) protection of workers’ rights in Canada has developed in a somewhat ad hoc manner. In the early days, the courts gave s. 2(d) a narrow and legalistic interpretation which focussed on the individual. As such, trade unions and workers in Canada received little benefit from s. 2(d) of the Charter. Unfortunately, the Charter provision was given a more
robust interpretation by courts when it was used against unions in the context of a freedom not to associate. However, as time went on, the Supreme Court recognized that s. 2(d) has a collective dimension under which group rights and interests are protected. The high water mark was in 2007 when the Supreme Court, in B.C. Health Services, departed from its earlier jurisprudence and held that s. 2(d) protects a limited procedural right to collective bargaining. In 2011, the Court decided the Fraser case in the face of a concerted attack on B.C. Health Services by governments and intervening business interest groups. In a contentious debate between the justices on the legitimacy of B.C. Health Services, the majority of the Court upheld its earlier decision
but “clarified” the reach of s. 2(d) in the labour context. This so-called clarification has led to a number of lower court decisions which have resulted in a great deal of uncertainty in the law. It is clear that at its next opportunity the Supreme Court of Canada must decide how fundamental freedom of association is to workers in Canada.