Health Services & Support Facilities Subsector Bargaining Assn v. British Columbia

In a stunning decision reached on June 8, 2007, the Supreme Court of Canada finally recognized a constitutional right to collective bargaining. The decision overturned the Court's previous jurisprudence in which it held that collective bargaining was not protected by the guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms.

The case began when the province of British Columbia passed legislation applicable to the health care sector that nullified existing collective agreement provisions that protected employees against contracting out and provided for job security, including layoff and bumping rights. It also precluded employers and unions from bargainingon those issues in the future. A number of unions challenged the legislation, arguing that it violated the Charter's guarantee of freedom of association.

The Supreme Court agreed, holding thatthe legislation violated the Charter. In reaching this conclusion the Court reversed its earlier jurisprudence and held that collective bargaining is protected by the Charter:

In earlier decisions, the majority view in the Supreme Court of Canada was that the guarantee of freedom of association did not extend to collective bargaining. Dunmore opened the door to reconsideration of that view. We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected.

The B.C. legislation breached s. 2(d) of the Charter, the Court held, because it substantially interfered with the process of collective bargaining by disregarding past processes of collective bargaining and pre-emptively undermining future processes of collective bargaining. The legislation could not be saved under s. 1 of the Charter because even though the government's objective of improving the delivery of health care services was important, the legislation did notminimally impair the rights of employees.

The Canadian Labour Congress intervened in support of the unions in this case. The CLC was represented by Steven Barrett and Ethan Poskanzer

Click here to read the Court's decision

Click here to read an article by Steven Barrett in which he predicted that the Court might reconsider its previous jurisprudence in light of Dunmore.