In the Supreme Court of Canada case known as Fraser, the Court determined that the statutory scheme governing labor relations for agricultural workers in Ontario was constitutional, despite lacking an effective mechanism for collective bargaining, a right that has had some (modest) constitutional protection since 2007. In the wake of this much-maligned decision it is unclear whether or not Charter litigation is capable of meaningfully protecting labor rights. However, in light of labor’s apparent commitment to litigation, this article explores a very modest claim about the potential of the labor movement to harness the Supreme Court’s reasoning in Fraser in support of constitutional protection for minority unionism.
Health Services and Support-Facilities Subsector Bargaining Assn v. British Columbia, 2007 SCC 27, [2007] 2 SCR 391 [Health Services].
7.
Her Majesty the Queen in Right of Canada v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 3 W.W.R. 481, 18 C.C.C. (3d) 385, 37 Alta. L.R. (2d) 97.
8.
Hersees of Woodstock v. Goldstein et al. (1963), 38 D.L.R. (2d) 449 (Ont. C.A.) [Hersees].
9.
Labour Relations and Employment Statute Law Amendment Act, 1995, SO 1995, c 1 [LRESLAA].
10.
[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, [PSAC] and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, [Saskatchewan Dairy Workers].
11.
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 [Lavinge].
12.
Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363.
13.
National Labor Relations Act, 29 U.S.C. §§ 151-169 [Wagner Act].
14.
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381.
15.
Ontario Labour Relations Act, SO 1995, c 1 [OLRA].
16.
R v. Advanced Cutting and Coring Ltd., 2001 SSC 70, [2001] 3 SCR 209 [Advanced Cutting].
17.
R v. Rahey, [1987] 1 SCR 58.
18.
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. (2002), 208 D.L.R. (4th) 385 SCC.
Saskatchewan v. Saskatchewan Federation of Labour et al., 2013 SKCA 43.
21.
SFL v. Government of Saskatchewan, 2012 SKQB 62 [SFL v. Sakskatchewan].
22.
AdamsRoy. 2008. From statutory right to human right: The evolution and current status of collective bargaining. Just Labour: A Canadian Journal of Work and Society12 (Spring): 48-67.
BanksKevin. 2013. The role and promise of international law in Canada’s new labour law constitutionalism. Canadian Labour & Employment Law Journal16 (2): 233-90.
BraleyAlison. 2011. “I will not give you a penny more than you deserve”: Ontario v. Fraser and the (uncertain) right to bargain collectively in Canada. McGill Law Journal57 (2): 351-74.
CorbettWilliam R.2002. Waiting for the labor law of the twenty-first century: Everything old is new again. Berkeley Journal of Employment and Labor Law23 (2): 259-306.
29.
CoulterKendra. 2013. Raising retail: Organizing retail workers in Canada and the United States. Labor Studies Journal38 (1): 47-65.
30.
DooreyDavid. 2013. Graduated freedom of association: Worker voice beyond the Wagner Model. Queen’s Law Journal38 (2): 515-48.
31.
EwingE. D.HendyJ.2012. Giving life to the ILO—Two cheers for the SCC. In Constitutional rights in Canada: Farm workers and the Fraser case, edited by FaradayF.FudgeJ.TuckerE.Toronto, Canada: Irwin Law.
32.
FiskCatherineTashlitskyXenia. 2011. Imagine a world where employers are required to bargain with minority unions. ABA Journal of Employment and Labour Law27 (1): 1-22.
33.
FudgeJudy. 2008. The Supreme Court of Canada and the right to bargain collectively: The implications of the Health Services and Support Case in Canada and beyond. Industrial Law Journal37 (1): 25-53.
34.
FudgeJudy. 2012. Constitutional rights, collective bargaining and the Supreme Court of Canada: Retreat and reversal in the Fraser case. Industrial Law Journal41 (1): 1-29.
35.
GindinSam. 2013. Up against the wall: The political economy of the new attack on the Canadian labour movement; A reply to Andrew Jackson. Just Labour: A Canadian Journal of Work and Society20 (Summer): 64-68.
HarcourtMarkHaynesPeter. 2011. Accommodating minority unionism: Does the New Zealand experience provide options for Canadian law reform?Canadian Labour & Employment Law Journal16 (1): 51-80.
38.
HarcourtMarkHaynesPeter. 2010. How much would US union membership increase under a policy of non-exclusive representation?Employee Relations32 (1): 89-98.
39.
HutchisonA. C.MonahanPatrick. 1984. Law, politics and the critical legal scholars: The unfolding drama of American legal thought. Stanford Law Review36 (1/2): 199-245.
40.
LangilleBrian. 2007. Can we rely on the ILO?Canadian Labour & Employment Law Journal13:363-90.
41.
LangilleBrian. 2009. The freedom of association mess: How we got into it and how we can get out of it. McGill Law Journal54:177-212.
42.
LockeJohn. 1966. The second treatise of civil government, in Two treatises of government, ed. CookThomas I.New York: Hafner.
43.
MandelMichael. 1994. The charter of rights and the legalization of politics in Canada. Rev. ed. Toronto, Canada: Thompson Education.
44.
McCartinJoseph. 2005. Democratizing the demand for workers’ rights: Toward a re-framing of labor’s argument. Dissent (Winter): 61-71.
