Fraser+v.+Ontario


 * Fraser v** **Ontario** ***2008 *ON Court of Appeal**
 * Facts:** The appeal is by Michael Fraser on his own and on behalf of the United Food and Commercial Workers Union Canada. UFCW engaged in efforts to organize the employees of Rol-Land mushroom factory for the purpose of representing them in collective bargaining. A significant majority of Rol-land employees voted to have them as their agent and yet Rol-Land has ignored UFCW’s attempts to engage in collective bargaining.

-The Govt enacted the //Agricultural Employees Protection Act// (AEPA) in response to //Dunmore// which excludes agricultural workers from the LRA but provides some specific protections for organizing. -Since the instant case was first heard, the prevailing authority was //Dunmore// and the Trilogy but now we have the trilogy reversed by //BC Health Services// (where UFCW intervened) where the SCC ruled s.2d protects the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining.


 * Issue:**
 * 1) Does the AEPA violate s.2d of the Charter by substantially interfering with agriculture workers’ freedom to organize and the right to bargain collectively? No to freedom to organize but yes to the right to bargain collectively.
 * 2) Does it violate their right to equality under s.15 by denying them equal benefit and protection of the law based on their occupational status? No
 * 3) If so, are the violations saved under s.1? No.
 * 4) If not, what is the appropriate remedy? Invalidity, temporary suspension


 * Holding:** Appeal allowed. AEPA is constitutionally invalid

The AEPA -Has two main aspects : 1. s.18 specifically provides that the LRA “does not apply to employees or employers in agriculture”; 2. Establishes a separate statutory regime that applies exclusively to employees ëmployed in agriculture” -Its purpose is to protect the rights of agricultural employees (due to unique nature of agriculture) – see. p.500 for its different sections. Note what is missing from the AEPA: It does not impose an obligation on employers to bargain with employees’ association. -YES Organizing and collective bargaining are associational activities within s.2d. (Dunmore, BC Health) -Yes, they claim the AEPA is underinclusive and seek additional statutory protections. -YES There is a fundamentally non-statutory character to a right to organize (Dunmore) and in BC Health Services, the Court spoke of the fundamental nature of the right to bargain collectively. The claim is not grounded in the denial of access to the LRA. -The purpose of the legislative scheme does not //prima facie// constitute a substantial interference but most of the analysis needs to take place in the effects. -//The effect of the AEPA is to substantially impair the ability of agricultural workers to exercise their right to bargain collectively (although not to exercise their freedom to organize)// -Agricultural workers are a vulnerable group and evidence shows that it has been nearly impossible for them to organize and bargain collectively without statutory supports. -The evidence detailing UFCW’s attempts to organize and bargain collectively for agricultural workers at Rol-land demonstrates that agricultural workers have been unable to bargain collectively under the AEPA. (The AEPA fails to provide protections for collective bargaining which seriously impedes the capacity of agricultural workers to come together and meaningfully engage in the process.) -Although the evidence shows that the right of agricultural workers to //organize// has not been substantially interfered with (UFCW has been successful organizing workers), the related issue of exclusivity is dealt with in the criteria for collective bargaining above -YESA government can be responsible for inability of workers to exercise their s.2d rights against prviate employers, even if the government had not actively interfered with such rights (Dunmore). Here, the inability of workers to bargain collectively is linked to state action. -argument made that occupational status of agricultural worker is an analogous ground of discrimination for the purposes of s.15 because work is a fundamental part of a person’s identity. Propose that AEPA breaches the s.15 equality rights of agricultural workers by denying them benefits under the law that are available to other workers. -No violation of s.15 right was found in BC Health Services – long-standing practice in labour relations of creating legislation specific to specific segments of the labour force and that does not constitute s.15 discrimination. -In the instant case, there is no basis for finding “agricultural worker” is an analogous ground. The AEPA identifies an economic csector and limits the access of workers in that sector to aspects of a particular labour relations scheme. Agricultural worker includes workers of different skills and backgrounds. 1. Pressing and substantive objective? YES -The objective of the omission in the legislation cannot be understood in isolation but only with respect to the purposes of the Act as a whole -Judge finds that the main objectives of the AEPA are to protect the family farm and farm production/viability – these meet the first step of Oakes 2. Rational connection? NO -The wholesale exclusion of agricultural employees from a collective bargaining scheme is not adequately tailored to meet the objective of protecting the family farm. -It is arbitrary to exclude all agricultural workers from a collective bargaining scheme on economic grounds, where collective bargaining has been extended to nearly every other class of worker in ON, including others with thin profit margins. 3. Minimal Impairment? NO -Excludes ALL employees in the agricultural sector from a regime providing for collective bargaining – no effort to minimize the impairment by carving out family farm that are supposedly incompatible with the formal labour relations regime 4. Proportionality? NO – not necessary to consider in detail -The AEPA is declared invalid and the government is ordered to provide agricultural workers with sufficient protections to enable them to exercise their right to bargain collectively. -Declaration of invalidity suspended for 12 months to give the government time.
 * Reasoning:** (Winkler)
 * ISSUE ONE**
 * -**The combined effect of //Dunmore// and //BC Health Services// is to recognize that s.2d protects the rights of workers to organize and to engage in meaningful collective bargaining – in some cases, s.2d may impose positive obligations on the government to enact legislation to protect the rights and freedoms of vulnerable groups.
 * -The (Baier) test for a positive rights claim:**
 * 1. Are the activities for which the appellants seek s.2d protection associational activities?**
 * 2. Are they seeking a positive entitlement to government action (if so consider the three so-called** **Dunmore** **factors) or the right to be free from government interference?**
 * 3. Are the claims grounded in s.2d rather than in a particular statutory regime?**
 * 4. Have the appellants demonstrated that exclusion from the state has the purpose or effect of substantially interfering with the freedom to organize or the right to bargain collectively?**
 * -In order to provide for meaningful collective bargaining, the legislation must go further than simply stating the principle and include provisions ensuring that the right can be realized. At a minimum it must include:**
 * -a statutory duty to bargain in good faith**
 * -statutory recognition of the principles of exclusivity and majoritarianism**
 * -a statutory mechanism for resolving disputes**
 * 5. Is the government responsible for the inability to exercise the fundamental freedom?**
 * ISSUE TWO (s.15 challenge)**
 * ISSUE THREE** (s.1 --- Oakes)
 * ISSUE 4: REMEDY**