Following the Supreme Court’s decision in Dunmore, the Ontario government enacted the Agricultural Employee Protection Act (AEPA), which provided agricultural workers with protection of their right to make collective representations to their employer, but specifically designed not to provide for collective bargaining. The union argued that AEPA violated the workers’ freedom of association under s. 2(d) and equality rights under s. 15 of the Charter because it did not provide for collective bargaining protections as seen in the Labour Relations Act which applied to the majority of the workers in Ontario. In a minority judgment, Justices Rothstein and Charron suggested that B.C. Health Services was wrongly decided and should be reversed. The majority maintained that collective bargaining is constitutionally protected and includes a duty to bargain in good faith on important workplace issues. Relying on B.C. Health Services, the Court found that freedom of association requires both employer and employees to meet and to engage in “meaningful dialogue” in pursuit of a common goal of peaceful and productive accommodation. They must avoid unnecessary delays and make reasonable efforts to arrive at an acceptable contract. It does not, however, include a particular process; it does not require the parties to conclude an agreement or accept any particular terms; it does not guarantee a legislated dispute resolution mechanism in the case of an impasse; and it protects only the right to a general process of collective bargaining, not to a particular model of labour relations, or to a specific bargaining method. Left with the only having to show a statutory duty to bargain in good faith, the majority reviewed the AEPA. The majority found the Act to be constitutional by reading-in a requirement of good faith bargaining. In the defence of B.C. Health Services, the majority maintained that it was appropriate to show deference to ILO principles and the ILO Committee on Freedom of Association. Finally, the Court found it was premature to decide whether AEPA breached s. 15 of the Charter, leaving an open question of whether or not agricultural workers may be found as an analogous group.
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