In its long awaited Fraser 1 decision the Supreme Court has clarified the scope of protection that exists under the Canadian Charter of Rights and Freedoms (the Charter) for collective bargaining activities. The Court rejected arguments put forward by the union representing agricultural workers that a particular form of collective bargaining2 is required for a labour relations scheme to be compliant with the Charter. In its ruling, the Court found that a differential labour relations scheme for the farm industry falling outside of the scope of the Ontario Labour Relations Act (LRA) is constitutional.


The current labour legislation for farm workers in Ontario has a long and litigious history. From 1943 to 1994 farm workers were excluded from the LRA. In 1994, an NDP dominated Ontario legislature extended union and collective bargaining rights to farm workers for the first time. A year later, the new conservative government re-legislated the exclusion of farm workers from the labour relations regime. This amending legislation was challenged in the Supreme Court decision of Dunmore3 on the basis that it infringed the right of freedom of association under s. 2(d) of the Charter. The Supreme Court made the landmark ruling that collective bargaining is a fundamental right protected under the Charter by freedom of association, and that the amending legislation infringed this right by substantially preventing workers from collectively organizing themselves. The Supreme Court gave the legislature 18 months to make its legislation compliant with the Charter. The legislature responded with the Agricultural Employees Protection Act, 2002 (AEPA).

The AEPA created a separate labour regime protecting the right of farm workers to form employee associations, to participate in their activities, to assemble, to make representations to their employers on the terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the execution of their rights. Despite these protections, the United Food and Commercial Workers Union (the Union) claimed that the legislation failed to provide:

a) statutory protection for majoritarian exclusivity,

b) a statutory mechanism that would resolve bargaining disputes and interpret collective agreements, and

c) a statutory duty to bargain in good faith.

The Union claimed that these shortcomings in the legislation were a violation of s. 2(d) of the Charter. These perceived shortcomings were the central issues in Fraser.


In Fraser, the Union relied on the 2007 Supreme Court decision of Health Services and Support (Health Services). In Health Services, the Supreme Court was asked to assess the effect of BC legislation which impacted current collective bargaining agreements through spending control measures in the health sector. The Supreme Court found that this substantially interfered with the s. 2(d) right of freedom of association. The Ontario Court of Appeal sided with the Union and interpreted the Health Services decision as supporting the position that failing to provide legislative protections for collective bargaining seriously impairs the capacity of farm workers to come together and meaningfully engage in the process of collective bargaining. According to Chief Justice Winkler, without the legislative protections alleged to be lacking, workers are unable to exercise their right to bargain collectively and this was an infringement under s. 2(d). At the Supreme Court of Canada, the Attorney General of Ontario and the Union were joined by the Attorney Generals of Québec, New Brunswick, British Columbia and Alberta as well as several other interveners, thereby demonstrating the importance of the issue to unions, employers and governments.

The Supreme Court’s majority decision in Fraser takes issue with the Ontario Court of Appeal’s interpretation of Health Services. The majority of the Court clarified that Health Services only ruled that s. 2(d) protects “a process of collective action to achieve workplace goals.” This process requires the parties to meet and bargain in good faith. The Supreme Court strongly rejected the Court of Appeal’s interpretation of Health Services as implying that the case constitutionalized a “full-blown Wagner model of collective bargaining.” The key question is not the form of labour model but whether the impugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals. If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws) or by government action, then a limit has been placed under s. 2(d) of the Charter.


The Fraser decision seems to have narrowed the scope of Charter protection for collective bargaining activities. If the Supreme Court had ruled that the AEPA violated the Charter, there would have likely been a ripple effect across the country in which a variety of similar differential labour codes for particular industries would be challenged as several of these codes do not have the protections offered by the Wagner Model. By limiting the protection by section 2(d) (freedom of association) to include only a process of collective action to achieve workplace goals and to include a duty to meet and bargain in good faith, the Supreme Court has set a fairly low standard for compliance. Industries that have differential labour codes throughout Canada, such as farm workers and construction labourers, are therefore likely to have these codes upheld should they be challenged.

What remains to be answered is whether the complete exclusion of certain classes of workers from labour relations codes would also be acceptable to the Supreme Court. The most obvious example of this is domestic labourers, which is a common exclusion from labour codes across Canada. Furthermore, the government must continue to be cautious when implementing legislation that has the effect of limiting collective bargaining activities. In particular, actions that would act to undo progress made in collective bargaining agreements would presumably not be upheld by the Supreme Court in light of both Fraser and Health Services.