In June 2012, the Ontario Court of Appeal released its’ decision in the Mounted Police Assn. of Ontario v. Canada (Attorney General) case. The decision addresses the scope of section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) which protects freedom of association, a controversial subject which has been addressed by the Supreme Court of Canada in four recent decisions.
The case involved an appeal by the Crown from a decision of the Ontario Superior Court which found that section 96 of the Royal Canadian Mounted Police Regulations infringed the rights of RCMP members of two associations, the Mounted Police Association of Ontario (MPAO) and the British Columbia Mounted Police Professional Association (BCMPPA) to freedom of association. The associations, made up of RCMP members, were organized by individual RCMP members who wanted to represent the members in collective bargaining. However, section 2(1)(d) of the Public Service Labour Relations Act (the “Act”) precludes the associations from applying for certification as a bargaining agent for RCMP members. A separate labour relations system exists for the RCMP members, the Staff Relations Representative Program (SRRP), which is established by the Regulations.
The Court of Appeal explained that the case raises two “new questions” in respect of freedom of association in the labour context:
(1) whether “the right to collective bargaining” under section 2(d) guarantees workers the right to be represented by an association of their own choosing; and,
(2) whether “the right to collective bargaining” under section 2(d) requires that the process for addressing workers’ concerns with management be independent of management.
The Court of Appeal allowed the appeal and dismissed the cross-appeal brought by the associations.
The appeal had been delayed, pending the release of the Supreme Court of Canada’s decision in Fraser. Consequently, relying heavily on the Fraser decision, the court explained that section 2(d) does not give RCMP members the right to establish a particular type of association defined in a particular statute. Rather, the court held that collective bargaining, as protected by section 2(d), only protects the right to make collective representations and to have the representations considered by the employer in good faith. Further, section 2(d) also protects members from interference by management in the establishment of an independent employee association.
In order for there to be a positive obligation on the part of the government to include workers in the labour regime set out in the Act, the court determined that the RCMP members would have to demonstrate that it was “effectively impossible” for them to “associate collectively to achieve workplace goals”.
In support of its’ decision, the court highlighted the fact that the RCMP members had been able to successfully form voluntary associations, meaning that it was not “effectively impossible” for them to act collectively to achieve workplace goals. In addition, the existence of the SRRP and the Legal Fund demonstrated that the exercise of freedom of association by RCMP members was not effectively impossible.
Because the court found that it was not effectively impossible for RCMP members to associate collectively to achieve workplace goals, the court concluded that there was no positive obligation on the government to include them in the labour regime as set out in the Act.
In this case, the Court of Appeal underscored the Supreme Court’s pronouncement in Fraser that “there is no general obligation for the government to provide a particular legislative framework for employees to exercise their collective rights”. Thus, the court reiterated that the protection provided by section 2(d) is the associational activity, not a particular process or outcome.
An application has been made for leave to appeal to the Supreme Court of Canada.