Supreme Court of Canada Decision on Ontario v. Fraser - Ban on Farm Unions Constitutional

The Supreme Court ruling handed down this morning in the case of Fraser v. Ontario is a great victory for the Attorney General and the farming community.

LICC through its partnership with the Ontario Federation of Agriculture is delighted with the ruling. The ruling endorses that the Agricultural Employees Protection Act is constitutional. The Supreme Court totally rejected the Ontario Appeals Court ruling which was a concern to us. The Agricultural Employees Protection Act is the vehicle for workers collective interest. The ruling protects workers rights. Farm Employers are committed to working within the Agricultural Employees Protection Act

Here is a Bulletin and Backgrounder from LICC legal counsel Heenan Blaikie

April 29, 2011

Ontario v. Fraser – Supreme Court of Canada Allows the Appeal

This morning, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser (“Fraser”) concerning the extent of the constitutional protection of collective bargaining for Ontario agricultural workers under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”).

The Supreme Court determined that the Ontario Court of Appeal’s decision in Fraser v. Ontario (Attorney General), 2008 ONCA 760 should be overturned on the basis that the Court of Appeal seriously overstated the scope of collective bargaining rights under section 2(d). As a result, the appeal brought by the Attorney General of Ontario, in which the Ontario Federation of Agriculture and numerous other organizations intervened, has been allowed and the Agricultural Employees Protection Act, 2002 (“AEPA”) has been found to satisfy constitutional requirements.

Fraser is clearly one of the most significant labour and constitutional decisions in Canadian history.

Backgrounder: The Ontario Court of Appeal’s Decision in Fraser v. Ontario

In its 2008 decision, the Ontario Court of Appeal determined that the exclusion of agricultural workers from Ontario’s Labour Relations Act (“LRA”) and their inclusion in a separate statutory regime, the AEPA, was unconstitutional because it failed to provide adequate statutory protections to allow these workers to engage in collective bargaining. The Court of Appeal found that while the AEPA allowed workers to form or join employee associations (including unions) and to make representations to their employers regarding their employment, unlike the LRA, it did not compel employers to respond to and bargain with employees, did not regulate labour disputes, and did not limit representation rights to a single association or union per group of employees.

The Ontario Court of Appeal identified four protections that the Legislature was required to enact to enable agricultural workers to exercise their right to bargain collectively:

A duty to bargain in good faith;
A requirement that employee representatives be selected based on the principles of majoritarianism and exclusivity;
A mechanism for resolving labour disputes (i.e., strikes and lockouts);
A mechanism for resolving disputes regarding the interpretation and administration of collective agreements.

While the Court of Appeal was not entirely clear in this regard, it appeared to suggest that the constitutional right of collective bargaining in section 2(d) of the Charter generally requires statutory protection of the above-noted features.

At the time the Court of Appeal’s decision was released, many observers commented that it may be in conflict with the Supreme Court of Canada’s 2007 finding in the B.C. Health Services case that the constitutional protection for collective bargaining does not guarantee a particular model of labour relations.

The Supreme Court of Canada heard the appeal in Fraser v. Ontario in December 2009 and the matter has been under reserve since that time.

The Labour & Employment in the News E-News Bulletin is published by Heenan Blaikie LLP. The articles and comments contained herewith provide general information only. They should not be regarded or relied upon as legal advice or opinions. Heenan Blaikie LLP would be pleased to provide more information on matters of interest to our readers. © 2011, Heenan Blaikie LLP.

The ruling is over 200 pages and can be found at http://scc.lexum.org/en/2011/2011scc20/2011scc20.pdf

If you have questions on any of this material please contact,

Ken Linington P.Ag.

Labour Issues Coordinating Committee/Flowers Canada (Ontario)

45 Speedvale Avenue East, Unit 7

Guelph, Ontario

N1H 1J2

519 836-5495 or 1 800 698-0113 ext. 227

519 836-7529 fax

Ken@fco.on.ca

Lori Moser

OPIC/OSHAB Managing Director