Dunmore+v.+A.G.



Court || Supreme Court of Canada; 2001 || Issue || Does the impugned legislation violate the appellant’s freedom of association rights and equality rights guaranteed under the //Charter//? (1) Whether the government of Ontario has a **positive obligation** to protect the appellant’s constitutionally guaranteed rights under s.2//(d)// of the //Canadian Charter of Rights and Freedoms// (2) Whether the impugned legislation violates s.15(1) of the //Charter// (3) If so, whether infringements are justifiable under s.1 || Holding || Purpose of act infringes the //Charter// (1) yes (2) no [although L’Heureux-Dube says yes] (3) violation of 2(d) not justified under s.1. Therefore, s.3(b) of //LRA// declared unconstitutional. Declaration suspended for 18 months || Facts || s. 3 (b) of the //LRA// inhibits farm workers from unionizing, SCC asked to look at the **total exclusion** of an occupational group from a statutory labour regime - LRA: //Ontario Labour Relations Act//, 1995 [s.3(b) prevents agricultural workers from establishing, joining and participating in the **lawful** activities of a trade union] - LRESLAA: //Labour Relations and Employment Statute Law Amendment Act//, 1995 [repealed the //ALRA;// terminated any certification rights of trade unions under //ALRA// and prohibited employers from firing/punishing employees for participating in unions] - ALRA: //Agricultural Labour Relations Act//, 1994 [in effect from June 23, 1994 – November 10, 1995; only statue in Ontario to ever grant agricultural workers the right to form a trade union and collectively bargain]  || Ratio || - freedom of association is a fundamental freedom under the //Charter// - through association individuals are able to ensure that they have a voice in shaping the circumstances integral to their needs, rights and freedoms. It is an individual right but cannot be exercised alone - purpose of s.2(d) is to promote the realization of individual potential through relations with others - ** Freedom of association ** meant to protect the collective pursuit of common goals (**purpose of s.2(d)**) (//Lavigne v. O.P.S.E.U//) // (1) To establish violation of s.2(d): // (1) activities [i.e. trade unions] fall within the range of activities protected by s.2(d) (2) impugned legislation has, either in purpose or effect, interfered with these activities (//R v. Big M. Drug Mart Ltd.//) The State has a responsibility under 2(d) to respect the freedom to associate. However, the Charter does not //oblige// the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms // Haig: // in order to make a fundamental freedom meaningful, a positive governmental action may be required Does the //Charter// impose a **positive obligation** of protection? - agricultural workers are an extremely **vulnerable** group. They are often uneducated. They possess absolutely no independent ability to organize, either inside or outside of the relevant statutory context (//LRA//) Ontario legislature: Wants to exclude agricultural workers from the right to striking and collective bargaining, but also to insulate Ontario farms from the very presence of unions, which runs counter to the Charter’s guarantee of freedom of association 1) The //LRA// is designed to safeguard the exercise of a fundamental freedom, rather than to provide a limited statutory entitlement to certain classes of citizens (freedom to organize lies at the core of the s.2(d) – protection of freedom of association)   2)  Appellants are substantially incapable of exercising their fundamental freedom to organize without the protective regime (political impotence, lack of resources to associate without state protection, vulnerability to reprisal by their employers) 3) Appellants’ exclusion from the //LRA// functions not simply to permit private interference with their fundamental freedoms, but to substantially reinforce such interferences (conditions reinforced by legislation which fails to provide minimum protection of their freedom to organize and further isolates agricultural workers by excluding them from the general regime of labour relations) **The ability of agricultural workers to associate is only as great as their access to legal protection**   Reasonable to conclude that the complete exclusion of agricultural workers substantially interferes with their fundamental freedom to organize. //LRA// delegitimizes associational activity – s.3(b) therefore violates s.2(d) of Charter // (2) s.15 analysis // When a group is denied a statutory benefit accorded to others, the course is to review the denial under s.15(1), not s.2(d) (//Haig//)  -  In unique contexts (case at bar belongs in private, not public sphere where Constitutional norms don’t always apply), legislation that is underinclusive may substantially impact the exercise of a constitutional freedom. - Appellants argue here that they possess no independent ability to organize, either inside or outside of the relevant statutory context // Arguments for challenging underinclusion (para. // 24) 1) Argument needs to be grounded on **fundamental //Charter// freedoms** rather than access to a particular statutory regime [Appellants here are not claiming the right to be included in the //LRA//, but simply the **constitutional freedom to organize a trade association**. This freedom exists independently of any statutory enactment]  2)  Must demonstrate a proper evidentiary foundation. Must demonstrate that exclusion from statutory regime permits a **substantial interference** with the exercise of protected s.2(d) activity 3) Whether the state can truly be held accountable for any inability to exercise the fundamental freedom. Failure to include someone in a protective regime may affirmatively permit restraints on the activity that the regime is designed to protect  s.2(d): focuses on the effects of underinclusion on the **ability to exercise fundamental freedom**   s.15(1): focuses on the effects of underinclusion on **human dignity**   Therefore, impugned legislation does not violate s.15 of the //Charter//  Deep need for state action. The freedom to associate becomes meaningless in the absence of a duty of the state to take positive steps to ensure that the right is not a hollow one.  ‘chilling’ effect: idea that individuals anticipating penalties may hesitate before exercising constitutional rights  Overinclusivenss of the act – broad exclusion of //all// persons employed in agriculture from //all// provisions of the Act is too drastic of a measure (often used in a s.15 anaylsis) Wilson J. in //Osborne v. Canada:// once a legislation is found to be overinclusive, infringes a Charter right and cannot be justified under s.1, a court “has no alternative but to strike the legislation down, or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution” (para 163) Does occupational status count as s.15 discrimination? Critical question: whether the government has a legitimate interest in expecting agricultural workers to change their employment status to receive equal treatment under the law (para.169) YES – occupational status of agricultural workers constitutes an analogous ground // (3) Establishing a s.1 // //violation: Oakes Test// Are the //LRA// and //LRESLAA// sufficiently important to override a constitutionally protected freedom? Is the protection of the family farm a pressing enough objective to warrant the infringement of s.2(d) of the Charter? - Appropriate response is not to deny the protection, but to balance these interests against one another. Bastarache J. seems to think it is more a question of proportionality than a pressing and substantial objective - it is reasonable to speculate that unionization will threaten the flexibility and cooperation that are characteristic of the family farm - may be a rational policy in isolation, but nothing short of arbitrary when collective bargaining rights have been extended to almost every other class of workers in Ontario - While important to recognize the important role that family farms play in Ontario agriculture, such a role is not unique to Ontario in the context of Canada’s agricultural experience – it works in B.C!!! Therefore, does not pass this part of the test - take into account policy considerations Has the legislature: (1) Sought a balance between the interests of competing groups (2) defended a vulnerable group with a subjective apprehension of harm (3) chosen a remedy whose effectiveness cannot be measured scientifically 4) suppressed an activity whose social or moral value is relatively low FAILS because legislature has not made any satisfactory efforts to protect their basic right to form associations  -  Legislature must “attempt very seriously to alleviate the effects” of its laws on those who fundamental freedoms are infringed  -  Impairment must be **minimal**, that is, the law must be carefully tailored so that rights are impaired no more than necessary  Furthermore, legislature completely ignores the fact that there is an increasing trend in Canada towards corporate farming and complex agribusiness  Neither s.15 nor s.2(d) is infringed  -  Appellants must demonstrate that the impugned legislation has, either in purpose or effect, infringed activities protected by s.2(d)   -  In order for the state to be truly accountable, the appellants **must be able to demonstrate by direct evidence or inference** that the state is causally responsible for his/their inability to exercise a fundamental freedom ||
 * // Dunmore v. Ontario (Attorney General) //**
 * Can excluding agricultural workers from a statutory labour relations regime, without expressly or intentionally prohibiting association, constitute a substantial interference with freedom of association? **
 * L’Heureux-Dube J: ** impugned legislation //does// violate s.15
 * 1) sufficiently important objective **
 * 2) Proportionality **
 * a) rational connection ** : what are the stated objectives of the exclusion?
 * b) minimum impairment **
 * Major J. (dissent): **