In recent years, a number of cases have considered the scope of Charter 1 rights in the labour relations context. Specifically, courts have attempted to clarify what types of activities are protected under s.2(d) of the Charter, which guarantees the right to freedom of association.

It is now well established that employees have the right to organize as part of the guarantee to freedom of association. However, the right to engage in collective bargaining has only recently been recognized as a Charter right. In the seminal decision of Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia (“Health Services”),2 the Supreme Court of Canada held that section 2(d) of the Charter protects the right of employees and unions to engage, in association, in collective bargaining on fundamental workplace issues.

In the wake of the Health Services decision, courts have attempted to clarify and define how far constitutional protection extends into the collective bargaining process. This issue was recently considered by the Ontario Court of Appeal decision in Association of Justice Counsel v. Canada (Attorney General).3 That case involved a constitutional challenge to legislation that limited compensation increases for federal government employees represented by the Association of Justice Counsel (the “ACJ”).

Shortly after becoming certified as bargaining agent for federal government lawyers, the ACJ began negotiations to conclude a first collective agreement. Salary increases were a key issue during bargaining. However, when the ACJ rejected the government’s final offer with respect to salary increases, an impasse was reached and the parties submitted to arbitration. Before the arbitration commenced, the government enacted legislation limiting wage increases to the amounts contained in its final offer.

The ACJ challenged the legislation on the basis that it infringed the union’s right to engage in collective bargaining. The lower court agreed, accepting that the legislation infringed the right to engage in collective bargaining because it prevented meaningful discussion and consultation on a key issue between the parties. However, the judge went on to find that the legislation was justified in limiting salary increases for all except one of the proposed years.

The Ontario Court of Appeal reversed the lower court’s decision by finding that the legislation did not breach section 2(d) of the Charter. The Court of Appeal clarified that in the collective bargaining context, s.2(d) guarantees a process, and not a result. This procedural right was not violated by the legislation, as the ACJ had engaged in a collective bargaining process which permitted them to present their salary demands to the government, and to have those demands considered in good faith. The Court of Appeal went on to note that 2(d) did not include a right to conclude an agreement or accept any particular terms as part of the collective bargaining process. As such, the ACJ could not claim that the right to collective bargaining had been violated simply because the collective bargaining process failed to yield an agreement.