Supreme Court of Canada, Dunmore v. Ontario (Attorney General), 20 December 2001, No. 2001 SCC 94,  3 S.C.R. 1016
Protection against discrimination in employment and occupation , Freedom of association
Reference to international law to strengthen a decision based on domestic law
Freedom of association/ Protection against anti-union discrimination/ Exclusion of agricultural workers from the legal framework of labour relations/ The State’s positive obligation to protect freedom of association/ Violation of the Canadian Charter of Rights and Freedoms/ Reference to international law to strengthen a decision based on domestic law
In 1995, section 80 of the Labour Relations and Employment Statute Law Amendment Act (LRESLAA) abrogated the 1994 Agricultural Labour Relations Act (ALRA), which, for the first time, had expressly recognized the right of Ontario’s agricultural workers to unionize. Together, the aforesaid section 80 and section 3(b) of the 1995 Labour Relations Act (LRA) put an end to collective agreements in the agricultural sector, revoked the rights of the unions that had been accredited, and excluded agricultural workers from the protection introduced by the LRA against common law prohibitions on organizing and against the anti-unionization practices of employers.
The agricultural workers, in their own name and in that of the United Food and Commercial Workers International Union, challenged both the abrogation of the ALRA and their exclusion from the LRA before the Ontario courts. They argued that those provisions violated their freedom of association and their right to equality under the Canadian Charter of Rights and Freedoms (hereafter “the Charter”), which is part of the Constitution. After the Court of First Instance and the Ontario Court of Appeal both rejected their claim, the plaintiffs turned to the Canadian Supreme Court.
After determining that collective bargaining and the exercise of the right to strike did not fall within the scope of the claim, the Supreme Court deliberated whether there had been a violation of section 2(d) of the Charter, which gives everyone the fundamental freedom to associate.
In its analysis, the Court looked particularly at whether the collective activities of unions were effectively protected by section 2(d) of the Charter, and whether that section imposed upon the State a positive obligation to protect freedom of association that applied equally to agricultural workers. On these two points, the Supreme Court referred to international labour law to support and strengthen its reasoning.
Firstly, the Court set out to determine whether the scope of section 2(d) was limited to the collective exercise of individual rights and freedoms, or whether it also covered the collective activities of unions that could not be exercised individually. The Court arrived at a broad interpretation of the scope of the section, and referred to international labour law to strengthen that conclusion. It specifically noted that the decisions of the ILO Committee on Freedom of Association showed that full recognition of freedom of association implied effective protection for activities with a collective dimension carried out by unions.
The Court then looked at the main legal question raised by the case, namely whether, under section 2(d) of the Charter, the State had a positive obligation to protect the freedom of association of agricultural workers. The legislation the case was about did not actually forbid agricultural workers to unionize; it simply did not grant them the protection accorded to other workers against anti-union practices.
Basing its reasoning mainly on its own case law, the Court concluded that whenever it could be proved that denying a group protection granted by the law made it impossible to exercise a freedom recognized by the Charter, the State had to extend the scope of that legal protection. To support the recognition of the State’s obligation to extend the system protecting freedom of association to agricultural workers, the Court referred to several ILO Conventions. The Court drew on Articles 2 and 10 of Convention No. 87, on Convention No. 11 and on Convention No. 141 to stress the central nature of the principle of non-discrimination in the effective recognition of freedom of association.
After amassing evidence that the exclusion of agricultural workers from legal protection curtailed the effective exercise of freedom of association, the Supreme Court of Canada, using the ILO Conventions to confirm its reasoning, declared section 80 of the LRESLAA and section 3(b) of the LRA unconstitutional.