SUPREME COURT OF CANADA Citation: Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 Date: 20070608 Docket: 30554

http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html
SUPREME COURT OF CANADA





Citation: Health Services and Support - Facilities Subsector
Bargaining Assn. v. British Columbia, 2007 SCC 27




Date: 20070608

Docket: 30554



Between:

Health Services and Support - Facilities Subsector Bargaining
Association,

Health Services and Support - Community Subsector Bargaining
Association,

Nurses' Bargaining Association, Hospital Employees' Union, B.C.
Government

and Service Employees' Union, British Columbia Nurses' Union,

Heather Caroline Birkett, Janine Brooker, Amaljeet Kaur Jhand,

Leona Mary Fraser, Pamela Jean Sankey-Kilduff,

Sally Lorraine Stevenson, Sharleen G. V. Decillia and Harjeet Dhami

Appellants

and

Her Majesty The Queen in Right of the Province of British Columbia

Respondent

- and -

Attorney General of Ontario, Attorney General of New Brunswick,

Attorney General of Alberta, Confederation of National Trade Unions,

Canadian Labour Congress, Michael J. Fraser on his own behalf

and on behalf of United Food and Commercial Workers Union Canada, and

British Columbia Teachers' Federation

Interveners



Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish
and Abella JJ.





Joint Reasons for Judgment:

(paras. 1 to 168)



Reasons Dissenting in Part:

(paras. 169 to 252)






McLachlin C.J. and LeBel J. (Bastarache, Binnie, Fish and Abella JJ.
concurring)



Deschamps J.

Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.



______________________________

health services and support v. b.c.



Health Services and Support - Facilities Subsector

Bargaining Association, Health Services and

Support - Community Subsector Bargaining Association,

Nurses' Bargaining Association, Hospital

Employees' Union, B.C. Government and

Service Employees' Union, British Columbia

Nurses' Union, Heather Caroline Birkett,

Janine Brooker, Amaljeet Kaur Jhand,

Leona Mary Fraser, Pamela Jean Sankey-Kilduff,

Sally Lorraine Stevenson, Sharleen G. V. Decillia

and Harjeet
Dhami
Appellants



v.



Her Majesty The Queen in Right of the

Province of British
Columbia
Respondent



and



Attorney General of Ontario,

Attorney General of New Brunswick,

Attorney General of Alberta,

Confederation of National Trade Unions,

Canadian Labour Congress,

Michael J. Fraser on his own behalf

and on behalf of United Food and

Commercial Workers Union Canada and

British Columbia Teachers'
Federation
Interveners



Indexed as: Health Services and Support - Facilities Subsector
Bargaining Assn. v. British Columbia



Neutral citation: 2007 SCC 27.



File No.: 30554.



2006: February 8; 2007: June 8.



Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps,
Fish and Abella JJ.





on appeal from the court of appeal for british columbia



Constitutional law - Charter of Rights - Freedom of association -
Right to bargain collectively - Health and social services delivery
improvement legislation adopted by provincial government in response
to pressing health care crisis - Legislation affecting health care
workers' terms of employment - Whether constitutional guarantee of
freedom of association includes procedural right to collective
bargaining - If so, whether legislation infringes right to bargain
collectively - Whether infringement justifiable - Canadian Charter of
Rights and Freedoms, ss. 1, 2(d) - Health and Social Services Delivery
Improvement Act, S.B.C. 2002, c. 2, Part 2.



Constitutional law - Charter of Rights - Equality rights - Health care
workers - Health and social services delivery improvement legislation
adopted by provincial government in response to pressing health care
crisis - Legislation affecting health care workers' terms of
employment - Whether effects of legislation on health care workers
constitute discrimination under s. 15 of Canadian Charter of Rights
and Freedoms - Health and Social Services Delivery Improvement Act,
S.B.C. 2002, c. 2, Part 2.



The Health and Social Services Delivery Improvement Act was adopted as
a response to challenges facing British Columbia's health care
system. The Act was quickly passed and there was no meaningful
consultation with unions before it became law. Part 2 of the Act
introduced changes to transfers and multi-worksite assignment rights
(ss. 4 and 5), contracting out (s. 6), the status of contracted out
employees (s. 6), job security programs (ss. 7 and 8), and layoffs and
bumping rights (s. 9). It gave health care employers greater
flexibility to organize their relations with their employees as they
see fit, and in some cases, to do so in ways that would not have been
permissible under existing collective agreements and without adhering
to requirements of consultation and notice that would otherwise
obtain. It invalidated important provisions of collective agreements
then in force, and effectively precluded meaningful collective
bargaining on a number of specific issues. Furthermore, s. 10 voided
any part of a collective agreement, past or future, which was
inconsistent with Part 2, and any collective agreement purporting to
modify these restrictions. The appellants, who are unions and members
of the unions representing the nurses, facilities, or community
subsectors, challenged the constitutional validity of Part 2 of the
Act as violative of the guarantees of freedom of association and
equality protected by the Canadian Charter of Rights and Freedoms.
Both the trial judge and the Court of Appeal found that Part 2 of the
Act did not violate ss. 2(d) or 15 of the Charter.



Held (Deschamps J. dissenting in part): The appeal is allowed in
part. Sections 6(2), 6(4), and 9 of the Act are unconstitutional.
This declaration is suspended for a period of 12 months.



Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and Abella
JJ.: Freedom of association guaranteed by s. 2(d) of the Charter
includes a procedural right to collective bargaining. The grounds
advanced in the earlier decisions of this Court for the exclusion of
collective bargaining from the s. 2(d)'s protection do not withstand
principled scrutiny and should be rejected. The general purpose of
the Charter guarantees and the broad language of s. 2(d) are
consistent with a measure of protection for collective bargaining.
Further, the right to collective bargaining is neither of recent
origin nor merely a creature of statute. The history of collective
bargaining in Canada reveals that long before the present statutory
labour regimes were put in place, collective bargaining was recognized
as a fundamental aspect of Canadian society, emerging as the most
significant collective activity through which freedom of association
is expressed in the labour context. Association for purposes of
collective bargaining has long been recognized as a fundamental
Canadian right which predated the Charter. The protection enshrined
in s. 2(d) of the Charter may properly be seen as the culmination of a
historical movement towards the recognition of a procedural right to
collective bargaining. Canada's adherence to international documents
recognizing a right to collective bargaining also supports recognition
of that right in s. 2(d). The Charter should be presumed to provide
at least as great a level of protection as is found in the
international human rights documents that Canada has ratified.
Lastly, the protection of collective bargaining under s. 2(d) is
consistent with and supportive of the values underlying the Charter
and the purposes of the Charter as a whole. Recognizing that workers
have the right to bargain collectively as part of their freedom to
associate reaffirms the values of dignity, personal autonomy, equality
and democracy that are inherent in the Charter. [22] [39-41] [66] [68]
[70] [86]



The constitutional right to collective bargaining concerns the
protection of the ability of workers to engage in associational
activities, and their capacity to act in common to reach shared goals
related to workplace issues and terms of employment. Section 2(d) of
the Charter does not guarantee the particular objectives sought
through this associational activity but rather the process through
which those goals are pursued. It means that employees have the right
to unite, to present demands to government employers collectively and
to engage in discussions in an attempt to achieve workplace-related
goals. Section 2(d) imposes corresponding duties on government
employers to agree to meet and discuss with them. It also puts
constraints on the exercise of legislative powers in respect of the
right to collective bargaining. However, s. 2(d) does not protect all
aspects of the associational activity of collective bargaining. It
protects only against "substantial interference" with associational
activity. Intent to interfere with the associational right of
collective bargaining is not essential to establish breach of s.
2(d). It is enough if the effect of the state law or action is to
substantially interfere with the activity of collective bargaining.
To constitute substantial interference with freedom of association,
the intent or effect must seriously undercut or undermine the activity
of workers joining together to pursue the common goals of negotiating
workplace conditions and terms of employment with their employer.
[89-90] [92]



Determining whether a government measure affecting the protected
process of collective bargaining amounts to substantial interference
involves two inquiries: (1) the importance of the matter affected to
the process of collective bargaining, and more specifically, the
capacity of the union members to come together and pursue collective
goals in concert; and (2) the manner in which the measure impacts on
the collective right to good faith negotiation and consultation. If
the matters affected do not substantially impact on the process of
collective bargaining, the measure does not violate s. 2(d) and the
employer may be under no duty to discuss and consult. If, on the
other hand, the changes substantially touch on collective bargaining,
they will still not violate s. 2(d) if they preserve a process of
consultation and good faith negotiation. Only where the matter is
both important to the process of collective bargaining and has been
imposed in violation of the duty of good faith negotiation will s.
2(d) be breached. [93-94] [109]



A basic element of the duty to bargain in good faith is the obligation
to actually meet and to commit time to the process. The parties have
a duty to engage in meaningful dialogue, to exchange and explain their
positions and to make a reasonable effort to arrive at an acceptable
contract. However, the duty to bargain in good faith does not impose
on the parties an obligation to conclude a collective agreement, nor
does it include a duty to accept any particular contractual
provisions. In considering whether the legislative provisions impinge
on the collective right to good faith negotiations and consultation,
regard must be had for the circumstances surrounding their adoption.
Situations of exigency and urgency may affect the content and the
modalities of the duty to bargain in good faith. Different situations
may demand different processes and timelines. Moreover, failure to
comply with the duty to consult and bargain in good faith should not
be lightly found, and should be clearly supported on the record.
[100-101] [103] [107]



In this case, ss. 4, 5, 6(2), 6(4) and 9 of the Act, in conjunction
with s. 10, interfere with the process of collective bargaining,
either by disregarding past processes of collective bargaining, by
pre-emptively undermining future processes of collective bargaining,
or both. Sections 4 and 5 are concerned with relatively minor
modifications to in-place schemes for transferring and reassigning
employees. Significant protections remained in place. While the Act
took these issues off the collective bargaining table for the future,
on balance, ss. 4 and 5 cannot be said to amount to a substantial
interference with the union's ability to engage in collective
bargaining so as to attract the protection under s. 2(d) of the
Charter. However, the provisions dealing with contracting out (ss.
6(2) and 6(4)), layoffs (ss. 9(a), 9(b) and 9(c)) and bumping (s.
9(d)) infringe the right to bargain collectively protected by s.
2(d). These provisions deal with matters central to the freedom of
association and amount to substantial interference with associational
activities. Furthermore, these provisions did not preserve the
processes of collective bargaining. Although the government was
facing a situation of exigency, the measures it adopted constituted a
virtual denial of the s. 2(d) right to a process of good faith
bargaining and consultation. [128] [130-132] [134-135]



The section 2(d) infringement is not justified under s. 1 of the
Charter. While the government established that the Act's main
objective of improving the delivery of health care services and
sub-objectives were pressing and substantial, and while it could
logically and reasonably be concluded that there was a rational
connection between the means adopted by the Act and the objectives, it
was not shown that the Act minimally impaired the employees' s. 2(d)
right of collective bargaining. The record discloses no consideration
by the government of whether it could reach its goal by less intrusive
measures. A range of options were on the table, but the government
presented no evidence as to why this particular solution was chosen
and why there was no meaningful consultation with the unions about the
range of options open to it. This was an important and significant
piece of labour legislation which had the potential to affect the
rights of employees dramatically and unusually. Yet, it was adopted
rapidly with full knowledge that the unions were strongly opposed to
many of the provisions, and without consideration of alternative ways
to achieve the government objective, and without explanation of the
government's choices. [143-144] [147] [149] [156] [158] [160-161]



Part 2 of the Act does not violate s. 15 of the Charter. The
distinctions made by the Act relate essentially to segregating
different sectors of employment, in accordance with the long-standing
practice in labour regulation of creating legislation specific to
particular segments of the labour force, and do not amount to
discrimination under s. 15. The differential and adverse effects of
the legislation on some groups of workers relate essentially to the
type of work they do, and not to the persons they are. Nor does the
evidence disclose that the Act reflects the stereotypical application
of group or personal characteristics. [165] [167]



Per Deschamps J. (dissenting in part): The majority's reasons
concerning the scope of freedom of association under s. 2(d) of the
Charter in the collective bargaining context are generally agreed
with, as is their conclusion that no claim of discrimination contrary
to s. 15 of the Charter has been established. However, the analysis
relating to both the infringement of s. 2(d) and the justification of
the infringement under s. 1 of the Charter is disagreed with. [170]



Given that this case does not involve a claim of underinclusive
legislation, but an obligation that the state not interfere in a
collective bargaining process, a "substantial interference" standard
for determining whether a government measure amounts to an
infringement of s. 2(d) should not be imposed. Furthermore, since
there is no constitutional protection for the substantive outcome of a
collective bargaining process, the matter affected is not the
threshold issue when a claim is being evaluated under s. 2(d).
Rather, the primary focus of the inquiry should be whether the
legislative measures infringe the ability of workers to act in common
in relation to workplace issues. In the present context, a more
appropriate test for determining whether s. 2(d) has been infringed
can be stated as follows: Laws or state actions that prevent or deny
meaningful discussion and consultation about significant workplace
issues between employees and their employer may interfere with the
activity of collective bargaining, as may laws that unilaterally
nullify negotiated terms on significant workplace issues in existing
collective agreements. The first inquiry is into whether the process
of negotiation between employers and employees or their
representatives is interfered with in any way. If so, the court
should then turn to the second inquiry and consider whether the issues
involved are significant. Only interference with significant
workplace issues is relevant to s. 2(d). [175] [177-178] [180-181]



In this case, the freedom of association of health care employees has
been infringed in several instances, because ss. 4, 5, 6(2), 6(4) and
9 of the Act (in conjunction with s. 10) interfere with their right to
a process of collective bargaining with the employer. Sections 4 and
5 nullify some existing terms of collective agreements, limit the
scope of future negotiations and prevent workers from engaging in
associational activities relating to the important matter of transfer
and assignment of employees. Sections 6(2) and 6(4) nullify past
collective bargaining relating to contracting out, thereby rendering
the process nugatory, and preclude future collective bargaining on the
issue. These provisions concern a significant issue of employment
security, and negotiating such issues is one of the purposes of
associational activities in the workplace. Lastly, s. 9 makes
collective bargaining over specified aspects of layoff and bumping
meaningless and invalidates parts of collective agreements dealing
with these significant workplace issues. [186-188] [252]



In enacting Part 2 of the Act, the government's objectives were to
respond to growing demands on services, to reduce structural barriers
to patient care, and to improve planning and accountability, so as to
achieve long term sustainability. In addition to these general
objectives, the specific impugned provisions were designed to provide
a more seamless and flexible health care delivery system and develop
more cost-effective and efficient ways to deliver health services in
order to improve patient care and reduce costs. The objectives of
Part 2 of the Act and of the impugned provisions are important ones.
The health care system is under serious strain and is facing a crisis
of sustainability. There is little hope that it can survive in its
current form. [198-200]



It is clear from the context of these objectives that while the nature
of some of the working conditions that are likely to be affected tends
to favour a less deferential approach, substantial deference must be
shown in determining whether the measures adopted in this case are
justified under s. 1, in particular, in light of the crisis of
sustainability in the health care sector and the vulnerability of
patients. Here, the measures provided for in ss. 4, 5, 6(2), 6(4) and
9 of the Act are rationally connected to the pressing and substantial
objectives being pursued and, with the exception of s. 6(4), meet the
requirements of minimal impairment and proportionate effects. [193]
[222-223]



With respect to minimal impairment, the record shows that the
government adopted the impugned measures after considering and
rejecting other options that it believed would not meet its
objectives. Further, Part 2 of the Act was not aimed directly at the
Charter rights of the affected employees. Rather, the goal was to
respond to growing demands on services, to reduce structural barriers
to patient care and to improve planning and accountability so as to
achieve long- term sustainability. Section 4 was specifically
designed to facilitate the reorganization of health care service
delivery by enabling employers to transfer functions or services to
another worksite or to another health sector employer within a
region. As for s. 5, it relates to the temporary assignment of an
employee to another worksite or another employer. Employees do not
lose their employment as a result of ss. 4 and 5 and the regulations
adopted pursuant to the Act mitigate the impact of these provisions on
employees. Under s. 6(2), contracting out is not obligatory; rather,
this provision prohibits collective agreement clauses preventing
contracting out. Thus, although union density may be lower when work
is contracted out, there is still substantial room for all employees
providing non-clinical services to exercise their right to freedom of
association and to engage in a process of collective bargaining, even
when certain of those services are contracted out. In the context of
the province's health care crisis, removing prohibitions on
contracting out in collective agreements furthered the government's
objective in ways that alternative responses could not. Moreover, the
alternative measures considered by the government were problematic in
that many may have directly affected other Charter rights. As for s.
9, it impaired the collective bargaining process in respect of layoffs
and bumping, but was limited by a time period. It was adopted as a
transitional measure. It did not ban bumping or layoff provisions in
collective agreements, but only imposed by legislative means
attenuated terms for layoffs and bumping in place of those agreed to
in the collective bargaining process. Not only was the impact of s.
9(d) on workers minimized by safeguards provided for in s. 5 of the
regulations made under the Act, but there is also sufficient evidence
that s. 9 enabled the government to meet its objectives of making the
health care system more sustainable and improving service to patients
in ways that other alternatives would not permit. As with s. 6(2),
the history of labour relations in the province strongly suggests that
the terms set out in s. 9 could not have been successfully negotiated
by health care sector employers and unions. Sections 4, 5, 6(2) and 9
are carefully tailored so as to ensure that the government's
objectives are attained while infringing s. 2(d) as little as
possible. They are also a proportionate response to the crisis of
sustainability in health care, striking an appropriate balance between
the government's objectives and the freedom of association of
employees. [229-230] [232] [234-236] [238] [240] [245] [248] [250-251]

Section 6(4) fails both the minimal impairment test and the
proportionate effects test and is unconstitutional. The government
has failed to establish by evidence, inference or common sense that
the employers' ability to contract out would be restricted
unreasonably by a requirement to consult with the relevant unions
beforehand. While s. 6(4) does not, strictly speaking, prohibit
consultations on contracting out, declaring that any clause in a
collective agreement providing for consultation is void is an
invitation to employers not to consult. Taking consultation, which is
an important component of the collective bargaining process, off the
table is also a disproportionate measure. The marginal benefits of
this provision are outweighed by the deleterious effects of denying
consultation to affected unions. [242] [249] [252]



Cases Cited



By McLachlin C.J. and LeBel J.



Overruled: Reference re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424;
RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of
the Public Service of Canada v. Northwest Territories (Commissioner),
[1990] 2 S.C.R. 367; applied: Dunmore v. Ontario (Attorney General),
[2001] 3 S.C.R. 1016, 2001 SCC 94; referred to: Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497;
Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; R.
v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70;
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Perrault v. Gauthier
(1898), 28 S.C.R. 241; Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Dubois v. The Queen,
[1985] 2 S.C.R. 350; Nova Scotia (Attorney General) v. Walsh, [2002] 4
S.C.R. 325, 2002 SCC 83; R. v. Zundel, [1992] 2 S.C.R. 731; Corbiere
v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R.
203; R. v. Oakes, [1986] 1 S.C.R. 103; Wallace v. United Grain Growers
Ltd., [1997] 3 S.C.R. 701; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8; Lavigne v.
Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Royal Oak
Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369;
Canadian Union of Public Employees v. Nova Scotia Labour Relations
Board, [1983] 2 S.C.R. 311; Re United Electrical Workers, Local 512,
and Tung-Sol of Canada Ltd. (1964), 15 L.A.C. 161; Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers
Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Harper v.
Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; Chaoulli
v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35;
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, 2004
SCC 66; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2
S.C.R. 504, 2003 SCC 54; Little Sisters Book and Art Emporium v.
Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69;
Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835,
2003 SCC 34; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199.



By Deschamps J. (dissenting in part)



Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC
94; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women's Assn. of
Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v. Canada (Deputy
Attorney General), [1999] 2 S.C.R. 989; Thomson Newspapers Co. v.
Canada (Attorney General), [1998] 1 S.C.R. 877; Harper v. Canada
(Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Bryan,
2007 SCC 12; R. v. Oakes, [1986] 1 S.C.R. 103; Chaoulli v. Quebec
(Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35; RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v.
Keegstra, [1990] 3 S.C.R. 697; R. v. Edwards Books and Art, [1986] 2
S.C.R. 713; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R.
835; Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1
S.C.R. 256, 2006 SCC 6.



Statutes and Regulations Cited



Canada Labour Code, R.S.C. 1970, c. L-1 [am. S.C. 1972, c. 18],
Preamble.



Canadian Charter of Rights and Freedoms, ss. 1, 2(d), 7, 15, 32.



Conciliation Act, 1900, S.C. 1900, c. 24.



Constitution Act, 1982, s. 52.



Health and Social Services Delivery Improvement Act, S.B.C. 2002, c.
2, ss. 3, 4, 5, 6, 7, 8, 9, 10.



Health Sector Labour Adjustment Regulation, B.C. Reg. 39/2002, s.
2(1).



Industrial Disputes Investigation Act, 1907, S.C. 1907, c. 20.



Labour Relations Code, R.S.B.C. 1996, c. 244, ss. 35, 38.



Public Sector Employers Act, R.S.B.C. 1996, c. 384, ss. 3, 6.



Railway Labour Disputes Act, 1903, S.C. 1903, c. 55.



Wartime Labour Relations Regulations, P.C. 1003 (1944).



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Health Employers Association of British Columbia. Briefing Document -
Collective Agreement Efficiencies (2001).



Hogg, Peter W. Constitutional Law of Canada, student ed.
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International Labour Office. Committee on Freedom of Association.
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against the Government of Canada concerning the Province of British
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Klare, Karl E. "Judicial Deradicalization of the Wagner Act and the
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Rev. 265.



Laskin, Bora. "Collective Bargaining in Canada: In Peace and in
War" (1941), 2:3 Food for Thought 8.



Lipton, Charles. The Trade Union Movement of Canada, 1827-1959, 4th
ed. Toronto: NC Press, 1978.



Morin, Fernand, Jean-Yves Brière et Dominic Roux. Le droit de
l'emploi au Québec, 3e éd. Montréal: Wilson & Lafleur, 2006.



Palmer, Bryan D. Working-Class Experience: Rethinking the History of
Canadian Labour, 1800-1991, 2nd ed. Toronto: McClelland & Stewart,
1992.



Riddall, J. G. The Law of Industrial Relations. London:
Butterworths, 1981.

Rose, Joseph B. "Public Sector Bargaining: From Retrenchment to
Consolidation" (2004), 59 IR 271.



Rouillard, Jacques. Histoire du syndicalisme au Québec: Des origines
à nos jours. Montréal: Boréal, 1989.



Thompson, Mark. "Wagnerism in Canada: Compared to What?", in Anthony
Giles, Anthony E. Smith and Kurt Wetzel, eds., Proceedings of the
XXXIst Conference - Canadian Industrial Relations Association.
Toronto: CIRA, 1995, 59.



Tucker, Eric. "'That Indefinite Area of Toleration': Criminal
Conspiracy and Trade Unions in Ontario, 1837-77" (1991), 27 Labour 15.



Tucker, Eric. "The Faces of Coercion: The Legal Regulation of Labor
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United Nations. Human Rights Committee. Consideration of reports
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Treaties and Other International Instruments



Convention (No. 87) Concerning Freedom of Association and Protection
of the Right to Organize, 68 U.N.T.S. 17.



Declaration on Fundamental Principles and Rights at Work, 6 IHRR 285
(1999).



International Covenant on Civil and Political Rights, 999 U.N.T.S.
171, art. 22(1), (2).



International Covenant on Economic, Social and Cultural Rights, 993
U.N.T.S. 3, Art. 8(1)(c).



APPEAL from a judgment of the British Columbia Court of Appeal (Esson,
Low and Thackray JJ.A.) (2004), 30 B.C.L.R. (4th) 219, 243 D.L.R.
(4th) 175, [2004] 11 W.W.R. 64, 201 B.C.A.C. 255, 120 C.R.R. (2d) 266,
[2004] B.C.J. No. 1354 (QL), 2004 BCCA 377, upholding a judgment of
Garson J. (2003), 19 B.C.L.R. (4th) 37, 110 C.R.R. (2d) 320, [2003]
B.C.J. No. 2107 (QL), 2003 BCSC 1379. Appeal allowed in part,
Deschamps J. dissenting in part.



Joseph J. Arvay, Q.C., and Catherine J. Boies Parker, for the
appellants.



Peter A. Gall, Q.C., Nitya Iyer and Neena Sharma, for the respondent.



Robin K. Basu and Shannon Chace-Hall, for the intervener the Attorney
General of Ontario.



Written submissions only by Gaétan Migneault for the intervener the
Attorney General of New Brunswick.



Roderick S. Wiltshire, for the intervener the Attorney General of
Alberta.



Mario Évangéliste, for the intervener the Confederation of National
Trade Unions.



Steven M. Barrett and Ethan Poskanzer, for the intervener the Canadian
Labour Congress.



Paul J. J. Cavalluzzo and Fay C. Faraday, for the intervener Michael
J. Fraser on his own behalf and on behalf of United Food and
Commercial Workers Union Canada.



John Baigent and David Yorke, for the intervener the British Columbia
Teachers' Federation.



The judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and
Abella JJ. was delivered by



The Chief Justice and LeBel J. -



I. Introduction



A. Overview



1 The appellants challenge the
constitutional validity of Part 2 of the Health and Social Services
Delivery Improvement Act, S.B.C. 2002, c. 2 ("Act"), as violative of
the Canadian Charter of Rights and Freedoms guarantees of freedom of
association (s. 2(d)) and equality (s. 15).



2 We conclude that the s. 2(d)
guarantee of freedom of association protects the capacity of members
of labour unions to engage in collective bargaining on workplace
issues. While some of the impugned provisions of the Act comply with
this guarantee, ss. 6(2), 6(4) and 9 breach it and have not been shown
to be justified under s. 1 of the Charter. We further conclude that
the Act does not violate the right to equal treatment under s. 15 of
the Charter. In the result, the appeal is allowed in part.



B. The Background



3 This case requires the Court to
balance the need for governments to deliver essential social services
effectively with the need to recognize the Charter rights of employees
affected by such legislation, who were working for health and social
service employers. The respondent government characterizes the
impugned legislation as a crucial element of its response to a
pressing health care crisis, necessary and important to the well-being
of British Columbians. The appellants, unions and individual workers
representing some of the subsectors of the health care sector affected
by the legislation, by contrast, see the Act as an affront to the
fundamental rights of employees and union members under the Charter,
which they understand as including a collective right to pursue
fundamental workplace goals through collective bargaining in respect
of terms of employment.



C. The Act



4 The Act was adopted as a response
to challenges facing British Columbia's health care system. Demand for
health care and the cost of providing needed health care services had
been increasing significantly for years. For example, in the period
from 1991 to 2001, the growth rate of health care costs in British
Columbia was three times that of the provincial economy. As a result,
the government of British Columbia found itself struggling to provide
health care services to its citizens. The government characterized
the state of affairs in 2001 as a "crisis of sustainability" in the
health care system (Respondent's Factum, at para. 3).



5 The goals of the Act were to
reduce costs and to facilitate the efficient management of the
workforce in the health care sector. Not wishing to decrease
employees' wages, the government attempted to achieve these goals in
more sustainable ways. According to the government, the Act was
designed in particular to focus on permitting health care employers to
reorganize the administration of the labour force and on making
operational changes to enhance management's ability to restructure
service delivery (see British Columbia, Debates of the Legislative
Assembly, 2nd Sess., 37th Parl., vol. 2, No. 28, January 25, 2002, at
p. 865).



6 The Act was quickly passed. It
came into force three days after receiving a first reading as Bill 29
before the British Columbia legislature.



7 There was no meaningful
consultation with unions before it became law. The government was
aware that some of the areas affected by Bill 29 were of great concern
to the unions and had expressed a willingness to consult. However, in
the end, consultation was minimal. A few meetings were held between
representatives of the unions and the government on general issues
relating to health care. These did not deal specifically with Bill 29
and the changes that it proposed. Union representatives expressed
their desire to be further consulted. The Minister of Health Services
telephoned a union representative 20 minutes before Bill 29 was
introduced in the legislative assembly to inform the union that the
government would be introducing legislation dealing with employment
security and other provisions of existing collective agreements. This
was the only consultation with unions before the Act was passed (A.R.,
at p. 1076).



8 In British Columbia, the
collective bargaining structure in the health services is sectoral.
Thus, the Act affects labour relations between "health sector
employers" and their unionized employees. A "health sector employer",
as defined under the Act, is a member of the Health Employers
Association of British Columbia ("HEABC") established under s. 6 of
the Public Sector Employers Act, R.S.B.C. 1996, c. 384, and whose
employees are unionized (s. 3 of the Act). The HEABC is an employers'
association accredited to act as the representative of its members in
the bargaining process with health sector employees. Members of the
HEABC are hospitals and other employers designated by regulation,
including employers in the health sector receiving a substantial
amount of funding from the Ministry of Health (A.R., at p. 212).
Therefore, while the Act applies mainly to public sector employers, it
also applies to some private sector employers.



9 The appellants in the present case
are unions and members of the unions representing the nurses,
facilities or community subsectors - groups affected by the
legislation. Although they were affected by the legislation, other
groups like residents and paramedical professionals did not join the
litigation.



10 Only Part 2 of the Act is at issue in
the current appeal (see Appendix). It introduced changes to transfers
and multi-worksite assignment rights (ss. 4 and 5), contracting out
(s. 6), the status of employees under contracting-out arrangements (s.
6), job security programs (ss. 7 and 8), and layoffs and bumping
rights (s. 9).



11 Part 2 gave health care employers
greater flexibility to organize their relations with their employees
as they see fit, and in some cases, to do so in ways that would not
have been permissible under existing collective agreements and without
adhering to requirements of consultation and notice that would
otherwise obtain. It invalidated important provisions of collective
agreements then in force, and effectively precluded meaningful
collective bargaining on a number of specific issues. Section 10
invalidated any part of a collective agreement, past or future, which
was inconsistent with Part 2, and any collective agreement purporting
to modify these restrictions. In the words of the Act, s. 10: "Part
[2] prevails over collective agreements". It is not open to the
employees (or the employer) to contract out of Part 2 or to rely on a
collective agreement inconsistent with Part 2.



12 The details of the legislation and its
practical ramifications for employees and their unions will be
considered in greater detail later in these reasons. It suffices to
state at this point that while some of the changes were relatively
innocuous administrative changes, others had profound effects on the
employees and their ability to negotiate workplace matters of great
concern to them.



II. Judicial History



13 Neither the trial court nor the
British Columbia Court of Appeal was willing to recognize a right to
collective bargaining under s. 2(d) of the Charter, although the Court
of Appeal acknowledged that the Supreme Court of Canada had opened the
door to the recognition of such a right. In the result, the Act was
held to be constitutional under ss. 2(d) and 15.



14 The plaintiffs argued at trial that
the impugned legislation violated several constitutional rights
guaranteed under the Charter: freedom of association (under s. 2(d)),
life, liberty and security of the person (under s. 7), and equality
(under s. 15). The s. 7 argument was not pursued on subsequent
appeals.



A. British Columbia Supreme Court (2003), 19 B.C.L.R. (4th) 37, 2003
BCSC 1379



15 The trial judge, Garson J., dismissed
the plaintiffs' freedom of association claim on the ground that
collective bargaining was not an activity recognized by the Supreme
Court of Canada as falling within the scope of s. 2(d) of the Charter.
Indeed, she noted that the Supreme Court's jurisprudence consistently
and explicitly stated that the ability to bargain collectively was not
a Charter-protected activity. In her opinion, the plaintiffs had not
proved that the law targeted associational conduct because of its
concerted nature.



16 The trial judge also dismissed the
plaintiffs' claim under the equality provisions in s. 15 of the
Charter. The plaintiffs argued that the Act subjected them to
differential treatment in a manner affecting their dignity and
personhood, based on overlapping grounds of sex and being workers who
work in "women's jobs" (para. 154). The trial judge, applying Law v.
Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497,
held that there was no violation of s. 15. First, the Act did not
distinguish between the plaintiffs and others in appropriate
comparator groups on the basis of personal characteristics; the
distinctions made were based on the claimants' sector of employment,
not their personal characteristics. Second, any adverse effects of
the impugned law on the claimants did not amount to differential
treatment as required for a s. 15 violation; "the fact that this group
is predominantly female does not constitutionally shield it from
governmental action that may adversely affect them without evidence
that it is being subject to differential treatment on the basis of s.
15 characteristics" (see para. 174). Third, the Act did not
discriminate on the basis of an enumerated or analogous ground. In
making this finding, the trial judge characterized the ground of
discrimination primarily in terms of occupational status as health
care workers, although she explicitly acknowledged that health care
workers were more predominantly female than other groups of unionized
workers in British Columbia and that their work continued to be
considered "women's work" (see para. 181). Finally, in the opinion of
the trial judge, any adverse treatment imposed by the Act did not
affect the dignity of the claimants, as required for a violation of s.
15 (para. 189).



B. British Columbia Court of Appeal (2004), 30 B.C.L.R. (4th) 219,
2004 BCCA 377



17 The Court of Appeal (per Thackray
J.A., Esson and Low JJ.A. concurring) concluded that there was no
violation of s. 2(d) or s. 15 of the Charter and dismissed the
appeal. After engaging in a detailed review of the Supreme Court's s.
2(d) jurisprudence, Thackray J.A. concluded that the current state of
authority was insufficient to sustain the conclusion that a right of
collective bargaining was protected under s. 2(d). He acknowledged
that the decisions of the Supreme Court, especially in Dunmore v.
Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, left
room to recognize a right to collective bargaining in future cases.
However, his view was that the appropriate forum for recognizing a
right to collective bargaining under s. 2(d) of the Charter was the
Supreme Court of Canada, not lower courts (see para. 106).



18 Having held that the impugned
legislation did not violate s. 2(d) of the Charter, Thackray J.A. went
on to consider whether the legislation was also valid under the
equality rights provisions in s. 15. He found no error in the
analysis of the trial judge. Like the trial judge, he inclined to the
view that any disadvantages imposed on health care workers under the
Act related to their role as health care workers under a particular
scheme of labour relations, and did not involve their personal
characteristics, the enumerated or analogous grounds, or their
dignity. Even though the appellants had legitimate complaints about
the effects of the Act on their lives and work, these adverse effects
were outside the scope of s. 15 of the Charter.



III. Analysis



A. Section 2(d) of the Charter



19 At issue in the present appeal is
whether the guarantee of freedom of association in s. 2(d) of the
Charter protects collective bargaining rights. We conclude that s.
2(d) of the Charter protects the capacity of members of labour unions
to engage, in association, in collective bargaining on fundamental
workplace issues. This protection does not cover all aspects of
"collective bargaining", as that term is understood in the statutory
labour relations regimes that are in place across the country. Nor
does it ensure a particular outcome in a labour dispute, or guarantee
access to any particular statutory regime. What is protected is
simply the right of employees to associate in a process of collective
action to achieve workplace goals. If the government substantially
interferes with that right, it violates s. 2(d) of the Charter:
Dunmore. We note that the present case does not concern the right to
strike, which was considered in earlier litigation on the scope of the
guarantee of freedom of association.



20 Our conclusion that s. 2(d) of the
Charter protects a process of collective bargaining rests on four
propositions. First, a review of the s. 2(d) jurisprudence of this
Court reveals that the reasons evoked in the past for holding that the
guarantee of freedom of association does not extend to collective
bargaining can no longer stand. Second, an interpretation of s. 2(d)
that precludes collective bargaining from its ambit is inconsistent
with Canada's historic recognition of the importance of collective
bargaining to freedom of association. Third, collective bargaining is
an integral component of freedom of association in international law,
which may inform the interpretation of Charter guarantees. Finally,
interpreting s. 2(d) as including a right to collective bargaining is
consistent with, and indeed, promotes, other Charter rights, freedoms
and values.



21 In the sections that follow, we
discuss each of these propositions. We then elaborate on the scope of
the protection for collective bargaining found in s. 2(d) of the
Charter. Ultimately, in applying our analysis to the facts of the
case, we find provisions of the Act to be in violation of s. 2(d) and
not justified by s. 1 of the Charter.



(1) Reasons for Excluding Collective Bargaining from Section 2(d) in
the Past Require Reconsideration





22 In earlier decisions, the majority
view in the Supreme Court of Canada was that the guarantee of freedom
of association did not extend to collective bargaining. Dunmore,
opened the door to reconsideration of that view. We conclude that the
grounds advanced in the earlier decisions for the exclusion of
collective bargaining from the Charter's protection of freedom of
association do not withstand principled scrutiny and should be
rejected.



23 The first cases dealing squarely with
the issue of whether collective bargaining is protected under s. 2(d)
of the Charter were a group of three concurrently released appeals
known as the labour "trilogy": Reference re Public Service Employee
Relations Act (Alta.), [1987] 1 S.C.R. 313 ("Alberta Reference"), PSAC
v. Canada, [1987] 1 S.C.R. 424, and RWDSU v. Saskatchewan, [1987] 1
S.C.R. 460. The main reasons were delivered in the Alberta Reference,
a case involving compulsory arbitration to resolve impasses in
collective bargaining and a prohibition on strikes. Of the six
justices participating in the case, three held that collective
bargaining was not protected by s. 2(d); four held that strike
activity was not protected. The next case to deal with the issue was
Professional Institute of the Public Service of Canada v. Northwest
Territories (Commissioner), [1990] 2 S.C.R. 367 ("PIPSC"), in which
the government of the Northwest Territories refused to enact
legislation required in order for the PIPSC union to bargain
collectively on behalf of nurses. A majority of four held that
collective bargaining was not protected by s. 2(d).



24 In these cases, different members of
the majorities put forth five main reasons in support of the
contention that collective bargaining does not fall within s. 2(d)'s
protection.



25 The first suggested reason was that
the rights to strike and to bargain collectively are "modern rights"
created by legislation, not "fundamental freedoms" (Alberta Reference,
per Le Dain J., writing on behalf of himself, Beetz and La Forest JJ.,
at p. 391). The difficulty with this argument is that it fails to
recognize the history of labour relations in Canada. As developed
more thoroughly in the next section of these reasons, the fundamental
importance of collective bargaining to labour relations was the very
reason for its incorporation into statute. Legislatures throughout
Canada have historically viewed collective bargaining rights as
sufficiently important to immunize them from potential interference.
The statutes they passed did not create the right to bargain
collectively. Rather, they afforded it protection. There is nothing
in the statutory entrenchment of collective bargaining that detracts
from its fundamental nature.



26 The second suggested reason was that
recognition of a right to collective bargaining would go against the
principle of judicial restraint in interfering with government
regulation of labour relations (Alberta Reference, at p. 391). The
regulation of labour relations, it is suggested, involves policy
decisions best left to government. This argument again fails to
recognize the fact that worker organizations historically had the
right to bargain collectively outside statutory regimes and takes an
overbroad view of judicial deference. It may well be appropriate for
judges to defer to legislatures on policy matters expressed in
particular laws. But to declare a judicial "no go" zone for an entire
right on the ground that it may involve the courts in policy matters
is to push deference too far. Policy itself should reflect Charter
rights and values.



27 The third suggested reason for
excluding collective bargaining from s. 2(d) of the Charter rested on
the view that freedom of association protects only those activities
performable by an individual (see PIPSC, per L'Heureux-Dubé and
Sopinka JJ.). This view arises from a passage in which Sopinka J. set
out the scope of s. 2(d) in four oft-quoted propositions (at pp.
402-3): (1) s. 2(d) protects the freedom to establish, belong to and
maintain an association; (2) it does not protect an activity solely on
the ground that the activity is foundational or essential to the
association; (3) it protects the exercise in association of the
constitutional rights and freedoms of individuals; and (4) it protects
the exercise in association of the lawful rights of individuals. If
this framework and the premise that s. 2(d) covers only activities
performable by an individual is accepted, it follows that collective
bargaining cannot attract the protection of s. 2(d) because collective
bargaining cannot be performed by an individual.



28 This narrow focus on individual
activities has been overtaken by Dunmore, where this Court rejected
the notion that freedom of association applies only to activities
capable of performance by individuals. Bastarache J. held that "[t]o
limit s. 2(d) to activities that are performable by individuals
would ... render futile these fundamental initiatives" (para. 16),
since, as Dickson C.J. noted in his dissent in the Alberta Reference,
some collective activities may, by their very nature, be incapable of
being performed by an individual. Bastarache J. provided the example
of expressing a majority viewpoint as being an inherently collective
activity without an individual analogue (para. 16). He concluded
that:



As I see it, the very notion of "association" recognizes the
qualitative differences between individuals and collectivities. It
recognizes that the press differs qualitatively from the journalist,
the language community from the language speaker, the union from the
worker. In all cases, the community assumes a life of its own and
develops needs and priorities that differ from those of its individual
members. ... [B]ecause trade unions develop needs and priorities that
are distinct from those of their members individually, they cannot
function if the law protects exclusively what might be "the lawful
activities of individuals". Rather, the law must recognize that
certain union activities - making collective representations to an
employer, adopting a majority political platform, federating with
other unions - may be central to freedom of association even though
they are inconceivable on the individual level. This is not to say
that all such activities are protected by s. 2(d), nor that all
collectivities are worthy of constitutional protection; indeed, this
Court has repeatedly excluded the right to strike and collectively
bargain from the protected ambit of s. 2(d).... It is to say, simply,
that certain collective activities must be recognized if the freedom
to form and maintain an association is to have any meaning. [Emphasis
added; para. 17.]





29 The fourth reason advanced for
excluding collective bargaining rights from s. 2(d) was the suggestion
of L'Heureux-Dubé J. that s. 2(d) was not intended to protect the
"objects" or goals of an association (see PIPSC, at pp. 391-93). This
argument overlooks the fact that it will always be possible to
characterize the pursuit of a particular activity in concert with
others as the "object" of that association. Recasting collective
bargaining as an "object" begs the question of whether or not the
activity is worthy of constitutional protection. L'Heureux-Dubé J.'s
underlying concern - that the Charter not be used to protect the
substantive outcomes of any and all associations - is a valid one.
However, "collective bargaining" as a procedure has always been
distinguishable from its final outcomes (e.g., the results of the
bargaining process, which may be reflected in a collective
agreement). Professor Bora Laskin (as he then was) aptly described
collective bargaining over 60 years ago as follows:



Collective bargaining is the procedure through which the views of the
workers are made known, expressed through representatives chosen by
them, not through representatives selected or nominated or approved by
employers. More than that, it is a procedure through which terms and
conditions of employment may be settled by negotiations between an
employer and his employees on the basis of a comparative equality of
bargaining strength.



("Collective Bargaining in Canada: In Peace and in War" (1941), 2:3
Food for Thought, at p. 8.)



In our view, it is entirely possible to protect the "procedure" known
as collective bargaining without mandating constitutional protection
for the fruits of that bargaining process. Thus, the characterization
of collective bargaining as an association's "object" does not provide
a principled reason to deny it constitutional protection.



30 An overarching concern is that the
majority judgments in the Alberta Reference and PIPSC adopted a
decontextualized approach to defining the scope of freedom of
association, in contrast to the purposive approach taken to other
Charter guarantees. The result was to forestall inquiry into the
purpose of that Charter guarantee. The generic approach of the
earlier decisions to s. 2(d) ignored differences between
organizations. Whatever the organization - be it trade union or book
club - its freedoms were treated as identical. The unfortunate effect
was to overlook the importance of collective bargaining - both
historically and currently - to the exercise of freedom of association
in labour relations.



31 We conclude that the reasons provided
by the majorities in the Alberta Reference and PIPSC should not bar
reconsideration of the question of whether s. 2(d) applies to
collective bargaining. This is manifestly the case since this Court's
decision in Dunmore, which struck down a statute that effectively
prohibited farm workers from engaging in collective bargaining by
denying them access to the Province's labour relations regime, as
violating of s. 2(d) of the Charter. Dunmore clarified three
developing aspects of the law: what constitutes interference with the
"associational aspect" of an activity; the need for a contextual
approach to freedom of association; and the recognition that s. 2(d)
can impose positive obligations on government.



32 Dunmore accepted the conclusion of the
majority in Canadian Egg Marketing Agency v. Richardson, [1998] 3
S.C.R. 157, that only the "associational aspect" of an activity and
not the activity itself are protected under s. 2(d). It clarified,
however, that equal legislative treatment of individuals and groups
does not mean that the "associational aspect" of an activity has not
been interfered with. A prohibition on an individual may not raise
associational concerns, while the same prohibition on the collective
may do so. Dunmore concluded:



In sum, a purposive approach to s. 2(d) demands that we "distinguish
between the associational aspect of the activity and the activity
itself", a process mandated by this Court in the Alberta Reference [p.
1043] (see Egg Marketing, supra, per Iacobucci and Bastarache JJ., at
para. 111). Such an approach begins with the existing framework
established in that case, which enables a claimant to show that a
group activity is permitted for individuals in order to establish that
its regulation targets the association per se (see Alberta Reference,
supra, per Dickson C.J., at p. 367). Where this burden cannot be met,
however, it may still be open to a claimant to show, by direct
evidence or inference, that the legislature has targeted associational
conduct because of its concerted or associational nature.



(Per Bastarache J., at para. 18.)

.