In a decision that will all but certainly find its way to the Supreme Court of Canada (SCC), the Ontario Court of Appeal (ONCA) has ruled that the exclusion of RCMP members from the collective bargaining regime established by the Federal Public Service Labour Relations Act (the “PLSRA”) is constitutional.
In the last few years, the SCC has issued three landmark decisions (Dunmore, Health Services, and Fraser) on the scope and interpretation of the “freedom of association” protections in the Charter (section 2d).
In Mounted Police Association of Ontario v. Canada, the ONCA found that certain labour-management structures, which were taken seriously by management and which permitted participation and discussion by employees about employment and labour relations issues, along with an independent legal fund established by the members themselves, were sufficient to satisfy the minimum requirements for the protection of the freedom of association under the Charter.
Relying primarily on Fraser and Dunmore, the ONCA held that ‘collective bargaining’ is protected only as a ‘derivative right’ under the Charter’s protection of freedom of association, such that only if the right to freedom of association is impossibly frustrated by government regulation (or the lack thereof) is the Charter protection violated. The ONCA was careful to highlight criticisms from noted scholars, like Brian Langille, who have commented in the wake of Dunmore, Health Services and Fraser that the Wagner model, though predominant in North America for decades, is not the only form of labour relations regime. As the SCC noted in Fraser, the Charter does not protect a particular form of collective bargaining, only the ability to make representations collectively and to have those representations considered in good faith.