Case Summary
Dunmore v. Ontario (Attorney General)
Dunmore v. Ontario (Attorney General)
[2001] S.C.C. 94
FACTS
Prior to 1994, agricultural workers in Ontario had been excluded from the province’s labour relations
regime. In 1994, the provincial government enacted the Agricultural Labour Relations Act, 1994 (“ALRA”),
which extended trade union and collective bargaining rights to agricultural workers. In 1995, the new
provincial government enacted the Labour Relations and Employment Statute Law Amendment Act, 1995 (“LRESLAA”).
The LRESLAA repealed the ALRA, excluded agricultural workers from the provincial labour relations regime or
Labour Relations Act, 1995 (“LRA”), and terminated any certification rights of trade unions and any
collective agreements certified under the ALRA.
Tom Dunmore, Salame Abdulhamid, Walter Lumsden and Michael Doyle (representing agricultural workers and
hereby referred to as the “appellants”) brought an application challenging the LRESLAA on the basis that it
violated ss. 2(d) and 15(1) of the Canadian Charter of Rights and Freedoms. The Ontario Court (General
Division) and the Ontario Court of Appeal upheld the challenged legislation.
LOWER COURTS
Ontario Court (General Division)
The Ontario Court found no violation of ss. 2(d) or 15 of the Charter. With respect to s. 2(d), the court
concluded that the challenged legislation did not deny agricultural workers the right to form a trade union.
Furthermore, to the extent agricultural workers were denied the ability to form a trade union, this
deprivation was due to the private actions of their employers and was beyond Charter review. In regards to s.
15(1), the court concluded that agricultural workers were not an enumerated or analogous group for the
purposes of establishing discrimination. The appellants appealed the decision to the Ontario Court of Appeal.
Ontario Court of Appeal
The Court of Appeal agreed with the reasons and results of the lower court and dismissed the appellants’
appeal. The appellants were granted leave to appeal to the Supreme Court of Canada.
ISSUES
The Supreme Court considered the following issues:
- Whether the LRESLAA violated s. 2(d) of the Charter.
- Whether the LRESLAA violated s. 15(1) of the Charter.
- If so, whether the violation(s) were justifiable under s. 1 of the Charter.
DECISION:
The Supreme Court allowed the appellants appeal (Major dissenting). Bastarache (writing for the majority)
concluded the following:
- The LRESLAA violated s. 2(d) of the Charter.
- The violation was not justifiable under s. 1 of the Charter.
L’Heureux-Dube (writing for herself) agreed with Bastarache’s disposition of the case but believed that
the case could be resolved on simpler reasons.
Major (writing for himself) dissented and concluded the following:
- The LRESLAA did not violate ss. 2(d) and/or 15(1) of the Charter.
DECISION REASONS:
Bastarache (with McLachlin, Gonthier, Iacobucci, Binnie, Arbour, LeBel).
Interpretation of s. 2(d) of the Charter
Bastarache recognized the following:
- The purpose of s. 2(d) is to allow the achievement of individual potential through interpersonal
relationships and collective action.
- The traditional formulation of the content of the section (i.e. lawful activities of individuals) fails
to capture the full range of activities protected by s. 2(d).
- The section should be extended to protect some inherently collective activities.
- To make the freedom to organize meaningful, s. 2(b) may impose a positive obligation on the state to
extend protective legislation to unprotected groups.
- When challenging under-inclusive legislation, the following must be considered:
- Claims of under-inclusion should be grounded in fundamental Charter freedoms.
- The claimant must demonstrate that exclusion from a statutory regime permits a substantial
interference with s. 2(d) activity.
- The context must be such that the state can be held accountable.
- The actions of private actors do not immunize the state from Charter review.
Section 2(d) of the Charter and the Impugned Legislation
Bastarache concluded that the legislation violated s. 2(d) of the Charter.
Protected Activity
Bastarache found that the appellants’ claim was related to activities within the protection of s. 2(d),
specifically to the establishment and maintenance an association of employees.
Purpose of the Legislation
Bastarache concluded that the purpose of the legislation did not violate s. 2(d). Conflicting claims
concerning the meaning of comments in the legislature made it difficult to conclude that the purpose of the
legislation was to infringe freedom to organize.
Effects of the Exclusion
Bastarache found that the effect of the legislation did violate s. 2(d). First, exclusion from the
labour relations regime permits a substantial interference with the agricultural workers’ freedom to
organize. There has never been an agricultural workers’ union in Ontario, except when they were included in
a labour relations regime under the ALRA. Second, the inability of agricultural workers to organize can be
linked to state action. The exclusion from the labour relations regime permits and reinforces private
interference with their freedom to organize. The exclusion also sends a message that delegitimizes their
associational activity.
Section 1 of the Charter
Bastarache concluded that the violation was not justifiable under s. 1 of the Charter. While the objective
of the legislation was sufficiently important to warrant a Charter violation, the means of the legislation
were not proportionate.
Importance of the Objective
Bastarache found two objectives in the legislation: (1) Ontario agriculture has unique characteristics
which are incompatible with legislated collective bargaining, (2) the ALRA’s purposes could not be realized
in the agricultural sector. Bastarache found that these objectives were sufficiently important to warrant a
violation of s. 2(d). For him, many farms in Ontario are family owned and operated. The protection of the
family farm is sufficiently important. Furthermore, the agricultural industry is volatile, highly
competitive, has thin profit margins, and is vulnerable to strikes and lockouts. The economic objective of
ensuring farm productivity is also sufficiently important.
Proportionality
- Rational Connection
Bastarache found a rational connection between the exclusion of the agricultural workers and the
legislation’s objective. For him, it was reasonable to speculate that unionization would threaten the
flexibility and co-operation that is characteristic of the family farm.
- Minimal Impairment
However, Bastarache concluded that the exclusion of the agricultural workers did not minimally impair
their right to freedom of association. First, the exclusion is overly broad by denying the right of
association to every sector of agriculture without distinction. Second, the reliance on the family farm
distinction ignores the trend towards corporate farming and does not justify the total exclusion of
agricultural workers from the collective bargaining regime. Finally, no justification is offered for
excluding agricultural workers from all aspects of unionization (i.e. the formulation and maintenance of
simple employee associations).
Remedy
Bastarache concluded that the appropriate remedy was to declare the LRESLAA (to the extent that it gives
effect to the exclusion clause in s. 3(b) of the ALRA) and s. 3(b) of the ALRA unconstitutional. Bastarache
suspended the declaration for 18 months to allow amending legislation to be passed.
Section 15 of the Charter
As the legislation violated s. 2(d), Bastarache found it unnecessary to consider issues under s. 15(1) of
the Charter.
Outcome
Bastarache concluded that the appellants’ appeal should be allowed. For him, the legislation violated s.
2(d) of the Charter in a manner that could not be justified under s. 1 of the Charter.
Interpretation of s. 2(d) of the Charter
’Heureux-Dubé recognized the following:
- The purpose of s. 2(d) is to protect the collective pursuit of common goals.
- Worker organizations are a powerful and vibrant example of the collective pursuit of common goals and
freedom of association is fundamentally important in the context of labour relations.
- There may be a positive obligation on the part of government to provide legislative protection against
unfair labour practices. This obligation is based upon the vulnerability of employees to management and the
power of employers to interfere with the formation and administration of unions.
Section 2(d) of the Charter and the Impugned Legislation
Purpose of the Legislation
L’Heureux-Dubé concluded that the purpose of the legislation violated s. 2(d) of the Charter. On a
balance of probabilities, the evidence shows that the legislature’s purpose in enacting the legislation was
to ensure that the associational activities of agricultural employees remained vulnerable to interference
from management. L’Heureux-Dubé rejected the argument that the government believed that the legislation
would only restrict union activities and not associational activities. For her, the reality of the labour
market indicates that when protective labour legislation is removed, associational rights are often
infringed.
Effects of the Exclusion
L’Heureux-Dubé concluded that the effects of the legislation also violated s. 2(d). For her, in the case
of agricultural workers in Ontario, s. 2(d) impose a positive obligation of protection or inclusion on the
state. The absolute removal of agricultural workers from ALRA protection created a situation where
employees had reason to fear employer retaliation and created a chilling effect upon associational
activities.
Section 1 of the Charter
L’Heureux-Dubé concluded that the violation of s. 2(d) was not justified under s.1 of the Charter. The
objective of the legislation was not sufficiently important to warrant a Charter violation and the means of
the legislation were not proportionate.
Importance of the Objective
L’Heureux-Dubé found two objectives in the legislation: (1) Ontario agriculture
has unique characteristics which are incompatible with legislated collective bargaining, and (2) the ALRA’s
purposes could not be realized in the agricultural sector. L’Heureux-Dube concluded that these objectives
were not sufficiently important to warrant a Charter violation. For her, it could not be argued that Ontario
agriculture has unique characteristics that were incompatible with legislated collective bargaining.
Considering that the ALRA speaks to the basic characteristics required for the operation of a modern
business, it was also difficult to accept that the legislation’s purposes were completely inapplicable to the
agricultural sector. At the very least, the ALRA would apply to factory-like agricultural enterprises in
Ontario.
Proportionality
-
Rational Connection
L’Heureux-Dubé found the means of the legislation (i.e. the barring of all agricultural employees from all
associational protections) not to be rationally connected to its objectives. Instead, she concluded that
the exclusion of agricultural workers would lead to agricultural enterprises that were less well managed
and with lower productivity.
-
Minimal Impairment
L’Heureux-Dubé also concluded that the means of the legislation did not minimally impair the s. 2(d) rights
of agricultural workers. The absolute exclusion of agricultural workers does not appropriately balance the
interests of labour, management, and the Canadian public. The state objective of securing the well-being of
the agricultural sector could be achieved through legislation that was less restrictive of freedom of
association.
-
Deleterious and Salutary Effects
As the legislation did not minimally impair the appellants’ freedom of association, L’Heureux-Dubé found no
reasons to consider the proportionality between the deleterious and salutary effects of the legislation.
Section 15 of the Charter and the Impugned Legislation
As the legislation violated s. 2(d), L’Heureux-Dubé found it unnecessary to consider issues under s. 15(1)
of the Charter. However, she did make the following observations:
- The occupational status of agricultural workers constitutes an “analogous ground” for the purpose of an
analysis under s. 15(1).
- Employment is a fundamental aspect of an individual’s life and an essential component of identity,
personal dignity, self-worth and emotional well-being.
Remedy
L’Heureux-Dubé agreed with Bastarache’s remedy in this case.
Outcome
L’Heureux-Dubé concluded that the appellants’ appeal should be allowed. For her, the legislation violated
s. 2(d) of the Charter in a manner that could not be justified under s. 1 of the Charter.
Section 2(d) of the Charter and the Impugned Legislation
Major concluded that the appellants failed to demonstrate that the legislation had violated s. 2(d) of the
Charter.
Purpose of the Legislation
Major agreed with Bastarache’s analysis and conclusion that the purpose of the
legislation did not violate s. 2(d).
Effects of the Exclusion
Major found that the effects of the legislation did not violate s. 2(d). For him,
s. 2(d) does not impose a positive obligation of protection or inclusion on the state, except in exceptional
circumstances. This case did not represent an exceptional circumstance because the appellants failed to
establish that the state is causally responsible for the inability of agricultural workers to exercise a
fundamental freedom.
Section 15 of the Charter and the Impugned Legislation
Major concluded that the legislation did not violate s. 15(1). For him, agricultural workers did not
represent an analogous group under s. 15.
Outcome
Major concluded that the appellants’ appeal should be dismissed. For him, the legislation did not violate
ss. 2(d) or 15 of the Charter.
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