In Pursuit of Equality : Rethinking the Constitutionalization of Labour Rights after FRASER
- Date
2013
- Auteurs
Alex Kerner
- Résumé
In this paper, I will argue that unions should look more seriously to the Charter’s equality provision as an alternative avenue to advocate for the constitutionalization of labour rights, both because this would provide an additional line of argument to persuade the Court and because it may actually strengthen workers’ section 2(d) claims. Although the Court has refused to include employment status or class in the list of analogous grounds in its equality test, several concurrent opinions have suggested that this is not an insurmountable hurdle and that work and employment may be an essential element of a person’s identity. The importance the Court assigned to equality concerns in collective bargaining rights litigation was most evident in the Dunmore decision, which was ultimately characterized as a section 2(d) case but nonetheless relied heavily on the language of equality to buttress the Ontario agricultural workers’ freedom of association claim. The Court’s understanding of equality and discrimination, however, has progressively narrowed over the years, with recent decisions refusing to deem certain treatments unequal if they fall outside of the parameters of stereotyping and prejudice. The task of pushing the Court to better defend collective bargaining rights under section 15(1) will, therefore, require convincing the Court to embrace a broader understanding of discrimination — one which includes laws that maintain social and economic disempowerment.
- Titre du périodique
Appeal
- Volume
18
- Number of pages
81-103
- Fichiers joints
- Pertinence géographique
Ontario, Quebec et Autres provinces