Mangan, David
(2016)
Process and Outcome.
King's Law Journal, 27 (1).
pp. 10-21.
ISSN 0961-5768
Abstract
Dunmore v Ontario (Attorney-General) has been identified as a demarcation point for the
interpretation of freedom of association.1 In overruling the long-established rule from
Hersees of Woodstock v Goldstein2 in RWDSU, Local 558 v Pepsi-Cola Canada Beverages
(West) Ltd,3 though, the Canadian Supreme Court signalled a willingness to depart
from past precedents. Ever since Health Services and Support—Facilities Subsector Bargaining
Association v British Columbia, where ‘the concept of freedom of association
[was interpreted as including the] notion of a procedural right to collective bargaining’,4
there has been debate regarding the content of the freedom of association pursuant to s 2
(d) of Canada’s Charter of Rights and Freedoms.5 Mounted Police Association of Ontario
v Canada (Attorney General),6 the focus here, supplemented the existing content of
freedom of association.
While Saskatchewan Federation of Labour v Saskatchewan7 remains the headline
decision for labour law in 2015, Mounted Police continued the elaboration of freedom
of association. Certainly Saskatchewan changed Canadian labour law textbooks: s 2(d)
of the Charter gives effect to a right to strike, thereby setting aside the interpretation
from 1987 that freedom of association was an individual right, accorded a limited
interpretation. Nevertheless, consider the legislation struck down. Through the Public
Service Essential Services Act,8 the provincial government granted itself unilateral authority
to declare any public sector workers as ‘essential service employees’, prohibiting them from participating in strike action. The Act contained no meaningful mechanism
for resolving bargaining impasses.9 Moreover, the identification of essential service
employees was even beyond adjudication by a labour relations board. Given the scope
of the legislation, surprise would have been slight that such a one-sided statute was
found to have violated s 2(d). Instead, Mounted Police provided some further direction
as to the content of a ‘meaningful pursuit of workplace goals’. The guidance can be categorised
in terms of process and outcome where the former constitutes the content of
freedom of association and the latter is viewed as sitting outside the right.
| Item Type: |
Article
|
| Keywords: |
Process; Outcome; |
| Academic Unit: |
Faculty of Social Sciences > Law |
| Item ID: |
11699 |
| Identification Number: |
https://doi.org/10.1080/09615768.2016.1163914 |
| Depositing User: |
David Mangan
|
| Date Deposited: |
14 Nov 2019 10:07 |
| Journal or Publication Title: |
King's Law Journal |
| Publisher: |
Taylor & Francis |
| Refereed: |
Yes |
| URI: |
|
| Use Licence: |
This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available
here |
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