The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Halth Service and Support Case in Canada and Beyond (original) (raw)
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The Supreme Court of Canada and the Right to Bargain Collectively in Canada and Beyond
2008
In June 2007, the Supreme Court of Canada expressly overruled twenty years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case.
Industrial Law Journal, 2008
In June 2007, the Supreme Court of Canada expressly overruled twenty years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case.
Labour (Committee on Canadian Labour History)
In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a right to bargain that entailed a correlative duty on employers to negotiate in good faith prior to the passage of modern collective bargaining legislation during and in the aftermath of World War II. As well, it criticizes the court's method of selectively extracting passages from the work of labour historians while ignoring the critical insights ...
Brave New Words: Labour, The Courts and the Canadian Charter of Rights and Freedoms
Windsor Yearbook of Access to Justice
In Health Services and Support – Facilities Subsector BargainingAssociation v. British Columbia, [2007] 2 S.C.R.391, the Supreme Court of Canada overturned precedent andconcluded “that the grounds advanced in the earlier decisions forthe exclusion of collective bargaining from the Charter’s protectionof freedom of association do not withstand principled scrutinyand should be rejected” (at para. 22). The author exploresthe Supreme Court of Canada’s change of heart and what thischange implies, not only for constitutional doctrine, but also forwhat the Court understands about the governance of the post-Fordist world of work. She situates the Court’s reasoning in afew key cases dealing with labour’s distinctive rights – to bargaincollectively and to strike – in the social context that both shapesthe legal discourse about labour rights and influences organizedlabour’s power. She considers the paradox of the Supreme Court’sembrace of Fordist labour rights in a post-Fordist economy, andsug...
Judicial Development of Collective Labour Rights – Contextually
The Supreme Court of Canada’s decision in B.C. Health Services, holding that collective bargaining attracts Charter protection, emphasizes the importance of context in constitutional interpretation. The author agrees with the Court in looking to context as part of a purposive approach to interpretation of laws, and he argues that such an approach can be compared to the way in which labour laws have been developed in Israel — a country which, in his view, is a useful source of comparative law for Canada. In an effort to respond to changing realities in the labour market and labour relations (most notably the weakening of trade unions), Israeli judges have in recent years created a number of collective rights in the area of freedom of association, collective bargaining, and strikes. On the basis of the experience of Israeli courts in developing new workplace protections where they are needed, the author contends that the Supreme Court of Canada should now take the next step and extend Charter protection to the right to strike.
2008
In its recent decision in B.C. Health Services, the Supreme Court of Canada took the monumental step of overruling its own precedents in the Labour Trilogy, by holding that the Charter guarantee of freedom of association does in fact protect a union’s right to engage in collective bargaining. The author argues that, while the decision marks a new era for labour relations in Canada, the Court’s methodology may have regressive consequences more generally for the interpretation of associational freedom under section 2(d) of the Charter. She focuses on three aspects of this methodology. First, in constitutionalizing the right of access to a collective bargaining procedure free from “substantial” government interference (but not the outcomes of that procedure), the decision creates a model of due process which could downgrade the entitlement in section 2(d) from a substantive to a procedural one.Second, while the imposition of a duty on employers to bargain in good faith may appear progr...
Global Labour Journal, 2019
The year 2017 marked the ten-year anniversary of the Health Services case, a precedent-setting decision by the Supreme Court of Canada that ruled collective bargaining is protected by the Canadian Charter of Rights and Freedoms. This article explores the impact and legacy of BC Health Services, and finds that while workers’ constitutional rights have been expanded under the Charter over the past decade, governments nevertheless continue to violate these rights. It concludes that the legacy of the case is not an enhanced level of protection for these rights to be enjoyed fully, but rather that the default option has been and will continue to be a financial penalty for the state in instances in which they violate workers’ rights. KEYWORDS labour rights; Canadian Charter of Rights and Freedoms; human rights; health services