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CFLR study: Supreme Court creates ‘brave new world’ for union rights


UNIONS HAVE THE SUPREME COURT ON THEIR SIDE. The proof of that is set out in detail in Brave New World: Fundamental Labour Rights in the Charter Era, the latest major study from the Canadian Foundation for Labour Rights (CFLR)


The paper shows that the evolution of the Supreme Court of Canada (SCC) to “robust and progessive” support of unions amounts to a brave new world for labour rights in Canada.


The study follows the evolution of the Supreme Court’s thinking with respect to its interpretation of Section 2(d) clause of the Canadian Charter of Rights and Freedoms. The clause covers freedom of association; SCC jurisprudence involving Section 2(d) cases revolve around defining the scope and meaning of labour rights of Canadian workers


New Labour Trilogy

The CFLR study demonstrates how the SCC has gradually and steadily expanded its interpretation of freedom of association since its first rulings in 1987. That year, the court released its first three labour rights decisions since the enactment of the Charter in 1985. Those decisions, known as the "Labour Trilogy," held that Section 2(d) provided little, if any, constitutional protection for labour rights.


Almost three decades later in 2015, the Supreme Court released three labour rights decisions commonly known as the "New Labour Trilogy." Those decisions were dramatic, as they represented a complete reversal of the Supreme Court’s 1987 Labour Trilogy and provided a far more expansive interpretation of Section 2(d).


They affirmed that Canadian workers have the constitutional rights allowing them to join a union of their own choosing, to bargain collectively and to take strike action against their employer. Since then, the Supreme Court and lower courts have issued several more decisions that have endorsed this expanded interpretation of Section 2(d).


Affirmation and optimism

The study also provides valuable insights into the impact the recent SCC decisions have on labour rights, union advocacy and future Charter litigation involving labour rights.


The recent SCC decisions expanding and constitutionalizing the labour rights of Canadians are significant for the labour movement, and, in fact, for Canadian society. As CFLR President James Clancy notes, “Our chief justices have clearly affirmed that unions matter to our country and our communities. They have recognized the importance of labour rights as a cornerstone of Canada’s democracy, deserving of protection under Canada’s constitution.”


“They also provide a sense of judicial optimism for the Canadian labour movement, as they represent the beginning of a more robust and progressive interpretation of labour rights by the courts in Canada”


Despite the new-found sense of optimism that the SCC’s 2015 ‘New Labour Trilogy’ provides for the future of labour rights in Canada, CFLR’s study explores several areas that need further exploration and understanding. These include:


  • boundaries around the substantial interference test for collective bargaining;

  • boundaries around the right to organize and the right to strike;

  • relationship between Sections 2(d) and 2(b) (freedom of expression) with respect to the right to strike;

  • the role of international labour law in future Section 2(d) litigation;

  • the labour relations background of new and future Supreme Court justices; and

  • the use of the Charter’s Notwithstanding Clause to pass unconstitutional labour laws,


Consultation and coordination

Based on these unresolved issues, the CFLR study offers the labour movement a number of recommendations to help guide national strategy around future 2(d) litigation. Chief among those, is that the labour movement continue to encourage greater consultation, cooperation, and coordination amongst unions to present strong and coordinated arguments before the courts in any future challenges to the constitutional rights of Canadian workers.


“The Supreme Court’s increasing recognition that labour rights are human rights has certainly helped build and reinforce an important narrative about the valuable role unions play in society in terms of enhancing our democracy and advancing economic equality and social justice for all Canadians,” noted Clancy.


“There is good reason to be optimistic that recent section 2(d) jurisprudence represents the beginning of a more robust and progressive interpretation of labour rights by the courts in Canada.


“If the labour movement hopes to use the SCC decisions to promote, strengthen, and expand labour rights in Canada, then it is critical that we develop a common understanding of their meaning.  It is our hope that this paper contributes to that understanding.


“As importantly, we must continue to work diligently to ensure that the practical application of the recent Court rulings increases workplace rights of all Canadian workers, and ultimately leads to progressive labour law reform across the country.”  


A copy of Brave New World: Fundamental Labour Rights in the Charter Era can be downloaded here.


The Canadian Foundation for Labour Rights (CFLR) is a national voice devoted to promoting labour rights as an important means to strengthening democracy, equality and economic justice here in Canada and internationally.


CFLR is a partner organization of the Canadian Labour Institute for Social and Economic Fairness (CLI).


This article was originally published by The Canadian Labour Institute.  

Reprinted with permission for CALM Members use.