Constitutional Labour Rights in Canada

On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. The case involved a constitutional challenge to an Ontario statute on the grounds that it violated agricultural workers’ freedom of association and right to equality by excluding them from the statutory protection that is available to virtually all other private sector workers and by failing to provide them with alternative legislative support for meaningful and effective collective bargaining rights. Although the Court upheld the constitutionality of the legislation by an eight to one majority, it provided four different, and incommensurable, sets of reasons. For the union that instigated the litigation, Fraser is a defeat. For the labour movement and their advocates, Fraser is ambiguous. What is clear, however, is that the Supreme Court of Canada was badly divided over the scope of protection that freedom of association provides to the right to bargain collectively.

 This collection of original essays untangles the two stories that are intertwined in the Fraser decision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications.

Fay Faraday is a social justice lawyer in Toronto, representing community groups and coalitions, unions, and individuals. She has extensive experience with Charter litigation at all levels of court. Fay has also served as an adjunct professor at Osgoode Hall Law School teaching courses in legal ethics and ethical lawyering, and has published extensively on constitutional law and human rights.

Judy Fudge is the Lansdowne Chair in Law at the University of Victoria. She has been widely published in law, history, and industrial relations journals, and she has co-authored and co-edited several books.

Eric Tucker, B.A., LL.B., LL.M. is a professor at Osgoode Hall Law School, York University. He has published extensively on the history and current state of labour and employment law.