March 17, 2006

1. March 17, 2006 • Labour cases: • Alberta Labour Reference (1987) • Public Service Alliance (1987) • Saskatchewan Dairy Workers (1987) • Lavigne (1991) • Dunmore (2001) • Pepsi (2002) • Newfoundland vs. NAPE (2004) • Social Equality & the Charter • Joel Bakan • Perspectives on Social Equality • Research reported in Clash of Rights, by Peter Russell et al. • Michael Mandel: The Charter of Rights and the Legalization of Politics • Mock Trials: Groups 1 through 4

2. Alberta Labour Reference (1987) Issue: does S. 2(d) of the Charter, “freedom of association,” include a right to strike? Background: 1970s & early 80s, several strikes in AB by nurses and pub servants. 1983: AB Lab Act amended to prohibit strikes & lockouts by pub servants, hosp empls, firefighters & nurses (pol already prohibited). Comp arbitration instead. Labour leaders claimed legis unconst because of 2(d). To settle, AB sent ref Q to prov CA. Prem Lougheed stated that if gov’t lost, it would use S. 33. CA: no right to strke; unions appealed to SCC. SCC decision: Majority (McIntyre): there are six possible approaches: Fr of assoc means rt to assoc with others & gps; gov’t can limit objects of the groups Gps can engage collectively in what indiv’s can do Whatever indiv’s can do alone, they can do with others Groups can engage collectively in activities fundamental to culture & traditions Gps can engage in lawful activities that are essential to the group Gps can engage in any activity, subject to reasonable limits in S.1 Labour cases

3. McIntyre: The Charter is primarily an an individual rights document. Denom school rts and aborig rts are the only exceptions. Charter doesn’t create new group rights. Only the first 3 interpretations of 2(d) acceptable. Example: gun club members can’t claim a right to bear arms as a group, thought they can’t as individuals Tocqueville: rt to associate with others is inalienable and a foundation of society. Courts don’t belong in labour relations field. Progressive lawyers say they should stay out. Dickson-Wilson dissent: McIntyre’s approach is “legalistic, ungenerous, indeed vapid.” If McIntyre’s approach acc’d, why have 2d? Workers are powerless against employers if they can only act individually. Coll bargaining allows workers and employers to bargain as relative equals. It has brought relative labour peace. It promotes dignity of workers. D’s application of Oakes: Objective – to protect services that are truly essential – sub. Important Why are all pub servants and hosp workers essential? Fails rational connection. Also does not impair rts minimally: certain matters can’t be arbitrated. Alberta Labour Ref (cont’d)

4. Impugned: fed gov’t “6 & 5” wage restraint legislation of 1982 Leg extended all coll agreements for 2 years for fed pub ser’ts & railway workers; & limited increases to 6% first year and 5% in second. Other employers encouraged but not required to follow same approach. Majority: legis valid for same reason as AB Lab Ref: no right to strike Dickson: there’s a rt to strike, but most of leg passes Oakes test. Objective: control inflation. Part of legis didn’t pass rational conn test: limits on coll bargaining re non-compensatory matters. Wilson: None of the legis passes Oakes test, as the singling out of fed pub servants and railway workers does not pass rational connection test. As well, this violates equality under Bill of Rights (S. 15 not in effect when union made argument) Sask Dairy Workers (1987) Impugned: back-to-work legis for dairy workers. Majority: upheld Dissents: Dickson: upholds because Oakes test passed; strike causes undue harm to 3rd parties (jud notice) Wilson: would strike down as Crown did not produce evidence re effects on producers. Public Service Alliance (1987)

5. Merv Lavigne - a college teacher in N. Ont., and a liberal candidate. He objected to the union giving money from the check-off to the NDP, thus forcing him to finance his opponents. Sought declaration that this violated 2(d) of Charter. “Rand formula”: everyone in “bargaining unit” pays check-off, even if not a union member. Supported by NCC, which spent $500,000 by 1989. Unions spent $400,000 defending Lavigne won at trial, lost in Ont CA (though indiv members could require unions to reimburse for expenditures they objected to) and appealed to SCC. Lavigne also lost at SCC SCC: All 7 js: Ch applies to colleges because of dir. gov’t control La Forest, Sopinka, Gonthier: Lavigne’s rt not to associate is protected by 2(d), but justified under s.1. Obj: encourage union democracy, and participation in social debates. Alternatives (opting in or out) do not meet Pt II requirements as effectively. Wilson, L’H-D, Cory: 2(d) does not include rt not to associate. McLaughlin: payments don’t violate 2(d) because they don’t necessarily associate Lavigne with union positions. 2(b) Fr of Exp argument: no one agrees with Lavigne position. Lavigne (1991)

6. Impugned: the part of the Ontario Labour Relations Act (LRA) that prevents farm workers from forming a union. Claim of Dunmore and other farm workers: the law violates freedom of association under the Charter. [2(d)] Supreme Court: 8-1 ruled that the Ontario gov’t has a positive duty to include farm workers. Failure to include them violates S. 2(d). This Charter violation cannot be justified under s. 1. Dunmore (2001)

7. Bastarache (plus McLachlin, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel): Unless farm workers are included in the LRA, they can’t effectively exercise their freedom to associate. “chilling effect” of exclusion. S. 1: purpose of exclusion: to protect family farm. Important so passes Pt I of Oakes. Rationally connected. However, does not minimally impair rights of farm workers. L’Heureux-Dubé: purpose is to prevent agricultural workers from unionizing. This doesn’t pass first part of Oakes test. Proportionality test is failed completely. Justice Major: dissents – no violation of 2(d). Farm workers disadvantaged by their situation, not by the state. Dunmore (2)

8. Situation: In 1997, Pepsi in Sask locked out employees in a labour dispute. Employees engaged in secondary picketing. Pepsi got an injunction to prevent secondary picketing from trial ct. Union got injunction modified by Sask Court of Appeal so that lawful secondary picketing would not be prevented. Impugned in SCC: Court of Appeal’s modified injunction. Pepsi claimed that trial court’s original injunction preventing secondary picketing was correct under common law, and did not violate the Charter. Union claimed that the original injunction violated S. 2(d) of Charter (freedom of association), and that Court of Appeal was correct. Pepsi v. RWDSU 558 (2002)

9. SCC: in a unanimous decision, the court dismissed the appeal (i.e. it upheld the Sask CA). The decision was written by McLachin & LeBel. Following Dolphin Delivery, the Charter does not contol disputes between private parties governed by the common law. However, “the judiciary ought to apply and develop the principles of the common law in a manner consistent with” fundamental values in the Charter. As long as unions picket (primary or secondary) in a way that is not criminal or tortious, we must respect their freedom of expression & association. Common law protects contractual rights and economic interests, but not in a way that unnecessarily restricts freedom of expression & association. A 1960s decision to the contrary was overruled. Pepsi v. RWDSU 558 (2)

10. Mentioned on Feb. 25 re equality; also relevant to labour Impugned: Nfld Public Sector Restraint Act (1991) 1988: Nfld gov’t signed a pay equity agreement so that women working for gov’t would be paid same as men, and some of past wage gap would be made up. 1991 legislation postponed the wage increases & extinguish arrears, for a $24 million saving. Some women workers grieved & won. On judicial review, grievance quashed. CA agreed. Union appealed to SCC. SCC :3 central issues Differential treatment? Yes If so, is it based on an enumerated of analogous ground? Yes, gender Does the law have a discriminatory purpose or effect? (essential question) Yes, effect Newfoundland vs. N.A.P.E. (Nfld & Lab Assoc of Pub & Pte Employees)

11. Section 1 analysis: Objective of impugned legislation: need to address the fiscal crisis. This is pressing & substantial, so Part I of Oakes test passed. II Proportionality test: a) rational connection between 1991 Act and objective? Yes b) Rights limited as little as necessary? Yes. Pay equity merely posponed. Gov’t worked with unions to explore least harmful alternatives. c) overall balance? Yes. The good of resolving the financial crisis outweighted the harm done by postponing pay equity. N.A.P.E. (2)

12. Joel Bakan: The Charter of Rights can only help to promote narrow, legal forms of equality. It can’t help with broader conceptions of social equality. Administrative equality: existing laws are applied equally to everyone to whom they apply Formal equality: laws may not draw distinctions based on personal characteristics. (Does this prevent affirmative action?) Social equality: “absence of major disparities in people’s resources, political & social power, & of well-being and of exploitation and oppression.” In Andrews, SCC adopted “substantive equality”: S. 15 intended to prevent discrimination against groups subject to stereotyping, historical disadvantage, & pol & social prejudice. Bakan argues that the following prevent achievement of social equality through the Charter: anti-statism: Charter is there to prevent abuse by state, not to force state to take positive steps to promote equality (Schachter) Atomism: rights claims expressed in “dyads”: two groups or parties, one with an obligation, one with a right, tend to promote individual equality settlements, not soc eq Social Equality and the Charter

13. “intentional communities”: Hutterite model: No private property except momentos Housing according to family need Communal dining Amish model: Private farms Relatively equal apportionment Community responsibility for education, health services, social services Kibbutz: “collective settlements” “direct democracy, equality in the workplace, gender equality, and mutual responsibility” Cuba: comprehensive social services; substantive equality in wages. Liberal society: Much more limited notions of equality than any of the above. Admin, formal, and some substantive equality. Extent of social equality depends more on individual & community choices than gov’t. Implementation of equalityin western society

14. What are the attitides of Canadians toward human rights issues in the post-Charter era? To what extent do the views of ordinary Canadians differ from “elites”? Ramdon sample of 2,084 Canadians conducted by York’s Institute for Social Research Comparisons made to U.S. studies previously conducted Systematic sample of elected politians at fed & prov levels (474) Sample of administrative elites from senior officials in fed Dept of Justice, Crown Attorneys, depts of AG – fed & prov levels (260) Lawyers with 10-30 years prof experience weighted acc to province (352) Sniderman, Fletcher, Russell, Tetlock:Clash of Rights (1996)

15. Have we gone too far in pushing equality rights?

16. Why are poor people poor?

17. Why are the rich rich?

18. Should people earn the same, or according to ability?

19. Chapter 6 of The Charter of Rights and the Legalization of Politics (1994): Annual income of top 20% of income receivers is 8 times that of bottom 20% Senior partners in large Bay Street law firms: $700,000 annual salary, 75 times Ont minimum wage Top corporate executives: $1 million to $3 million annually Richest 1% of Canadians own 19% of national wealth (av $900,000) Richest 10% own 57% of wealth (average $270,000) Poorest 40% own 1% of wealth; av $1000. Richest 1% of corporations own 80% of corporate wealth; top .01% own 44.9%. 3 Canadians amongst the top ten wealthiest people in the world: Reichmann brothers, K.C. Irving, Kenneth Thomson. During previous 10 years, disparity in wealth distribution had increased. Government transfers have managed to reduce disparities in income, so that there has only been a small increase in disparities. My social services experience: causes of poverty - poor education, inadequate parenting (usually ass’d with poverty) leading to poor life skills. Michael Mandel: The Charter and “inequality”

20. Mock Trials for Groups 1 to 4 • Mock trials will be held today for Groups 1 through 4 in the following rooms: • Group 1 Glendon (at Glendon) • Accolade West 205 • Accolade West 004 • Accolade West 005 We will announce in class which group will be in which location. The three Keele groups will meet in the hall outside Stedman D at 3:45 p.m. and we will walk together to the Accolade West Building. Please stay within your time allocations so that the mock trials can be finished by 5:30 p.m.