Collective Bargaining in the Shadow of the Charter Cathedral: Union Strategies in a Post B.C. Health World

Abstract

For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did not provide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter’s rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could be applied in pursuit of greater justice in the workplace while others were thankful that the courts were not interfering with legislative formulation of collective bargaining law and policy. Slowly, however, the courts have come to a different view of the Charter, finding that its values serve to provide protection for picketing, and in a sweeping revision of former jurisprudence in 2007 holding that the guarantee of freedom of association does provide protection for collective bargaining. This article describes the changing judicial views of the Charter through three distinct periods, each roughly a decade long: the formative period, the period of consolidation, and the period of re-assessment. It also traces some of the academic reaction to these developments. It concludes by an assessment of how the unions are attempting to harness the changing view of the Charter to pursue a variety of challenges to the existing legislative collective bargaining schemes in Canada. In doing so, the paper uses the metaphor of the Charter as a cathedral, with the judges and academic commentators as artists painting a variety of views of the Cathedral. It is only through assessing the multiplicity of views that one can hope to achieve even a partial understanding of the Charter’s role in Canadian labour law.