Mounted Police Association of Ontario v Canada, 2012 ONCA 363 (1 June 2012)
In Mounted Police Association of Ontario v Canada, the Ontario Court of Appeal considered the scope of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The question for the Court was whether a statutory employee relations regime imposed on the Royal Canadian Mounted Police violated section 2(d) of the Charter. Justice Juriansz, with whom Justices Doherty and Rosenberg agreed, held that this statutory regime did not make it impossible for members of the Police to exercise their fundamental freedom of association. Consistent with this freedom, Police members were able to form independent employee associations to collectively achieve their workplace goals.
The applicants in this case, the Mounted Police Association of Ontario and the British Columbia Mounted Police Professional Association, challenged three provisions of their statutory labour relations regime for violating section 2(d) of the Charter. Clause 22 of the Public Service Labour Relations Act 2003 allowed most employees in Canada’s federal public service to engage in collective bargaining processes with their employers. Section 2(1)(d) of this Act excluded members of the Police from this scheme. Section 96 of the Royal Canadian Mounted Police Regulations 1988 established a separate Staff Relations Representative Program for the Police. The Police argued that this regulatory scheme was not a genuine employee association with representatives freely chosen by employees, but a statutory association imposed upon them. At first instance, the applicant judge concluded that members of the Police had a constitutional right to form an independent association for labour relations that was free from management interference or influence. Section 96 of the Regulations violated this right, as the Program was neither an independent association representing employees nor an adequate vehicle for collective bargaining. Canada’s Attorney General appealed this finding.
Section 2(d) of the Canadian Charter provides a fundamental freedom of association which, in the labour context, includes a right to collective bargaining. As Justice Juriansz explained, Ontario (Attorney General) v Fraser  2 SCR 3 “is the most important authority to consider when interpreting section 2(d), not only because it is the most recent, but also because it restates the Supreme Court’s conclusions in the earlier cases”. In Fraser, the Canadian Supreme Court held that the right to collective bargaining under section 2(d) was a “derivative constitutional right”. This meant that a positive obligation to engage in good faith collective bargaining would only be imposed on an employer when it was effectively impossible for employees to act collectively to achieve their workplace goals.
The applicants argued that their freedom of association under section 2(d) was effectively useless unless a positive obligation was imposed on their employers to engage in collective bargaining. The Regulations permitted Police members to form voluntary employee associations. Once an association was created, the applicants argued that section 2(d) vested a right to negotiate with their employer on the basis of comparatively equal bargaining power. The Ontario Court of Appeal disagreed with this “expansive concept” of the constitutionally guaranteed right to collective bargaining. Following Canadian Supreme Court jurisprudence, the Court of Appeal held that “collective bargaining” under section 2(d) only protects the rights of employees to make collective representations and to have those representations considered in good faith. As this was a “derivative right”, government employers were only obliged to engage in collective bargaining where the derivative right was claimed. Employees could claim the derivative right by demonstrating that the exercise of their fundamental freedom was “effectively impossible”.
Justices Juriansz, Doherty and Rosenberg found that it was not impossible for Police members to exercise their fundamental freedom of association guaranteed by section 2(d) of the Charter, for three reasons:
- First, the Supreme Court had already considered this question in Delisle v Canada (Deputy Attorney General)  2 SCR 989, holding that RCMP members had a right to create voluntary employee associations. This was contrasted with agricultural workers, who did not have this right and therefore whose freedom of association under section 2(d) was violated (see Dunmore v Ontario (Attorney General)  3 SCR 1016).
- Secondly, it was not impossible for Police members to exercise their fundamental freedom of association due to the existence of the Program. The Court found that while the Program was not institutionally independent and Police members did not have a right to choose their representatives, these factors were not determinative to the case at hand. Rather, the extensive collaboration between elected Staff Relations Representatives and the Police management showed that it was not impossible for Police members to associate to achieve their collective goals.
- Thirdly, a “Legal Fund” had been created, representing more than 14,000 Police members, to help members with employee-related issues. The existence and maintenance of this “robust” association, and the functions it performed, supported the Court’s conclusions.
Ultimately, the Court of Appeal held that it was not effectively impossible for Police members to act collectively to achieve their workplace goals. Rather, as the Supreme Court’s findings in Delisle confirmed, the Police did have the freedom to form independent employee associations. It followed that the applicants were unable to claim the constitutional derivative right to effective bargaining under section 2(d) of the Charter. The Court allowed the Attorney General’s appeal and set aside the findings of the applicant judge.
Relevance to the Victorian Charter
Section 16(2) of the Victorian Charter of Human Rights vests a right in every person to freedom of association with others, “including the right to form and join trade unions”. The Ontario Court of Appeal’s decision may be relevant to interpreting this section, particularly concerning employees’ collective bargaining rights as members of trade unions. Following this decision, the freedom of association under section 16 of the Charter vests in employees a right to collectively represent their interests and have those representations considered in good faith. This freedom does not, however, impose any positive obligation on employers to engage in collective bargaining with every trade union or employee organisation voluntarily created.
The decision is available online at: http://canlii.ca/en/on/onca/doc/2012/2012onca363/2012onca363.html
Clare McKay, Law Graduate, King & Wood Mallesons Human Rights Law Group.