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Lavigne v. OPSEU

June 27, 1991

Supreme Court rejects challenge to Rand Formula

Is the mandatory check off of union dues legal under the Canadian Charter of Rights and Freedoms? The Supreme Court of Canada says “yes”.

Background

Mervyn Lavigne was a teacher at a community college who was required to pay dues to OPSEU under a mandatory check-off clause, pursuant to s. 53 of the Colleges Collective Bargaining Act.

Lavigne objected to some of things the union spent money on, including contributions to the NDP and to disarmament campaigns. He challenged the mandatory dues check-off (also known as the Rand formula), arguing that it violated his freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms.

A trial judge held that the Rand formula violated s. 2(d) of the Charter because it forced Lavigne to pay dues to the union for purposes not directly related to collective bargaining.

However, the Ontario Court of Appeal reversed the decision. It held that the way a trade union uses its dues was a private activity by a private organization. The Rand Formula was therefore beyond the reach of the Charter. Moreover, there had been no infringement of Lavigne’s freedom of association since he could associate with whomever he chose and could oppose the union.

Lavigne appealed to the Supreme Court of Canada. The Canadian Labour Congress and the Ontario Federation of Labour intervened in the appeal in support of OPSEU.

The Supreme Court’s decision

On June 27, 1991, the Supreme Court dismissed Lavigne’s appeal. The members of the Court were divided in their reasons for decision.

Three judges held that the Rand formula violated s. 2(d) of the Charter. However, they held that the infringement was justified under s. 1 of the Charter as a reasonable limit in a free and democratic society.  In their view, the statute’s objective in requiring payment of union dues was to enable unions to participate in the broader political, economic and social debates in society and to contribute to democracy in the workplace. These objectives were compelling and were rationally connected to the requirement that all union members pay dues. An opting-out formula could seriously undermine a union’s financial base and the spirit of solidarity so important to the underpinnings of unionism.

Four judges held that there had been no violation of s. 2(d), and that, in any event, any violation would be saved under s. 1 of the Charter.

In the result, although three judges found a breach of the Charter, the Court unanimously held that the Rand Formula is constitutional and dismissed the appeal.

Steven Barrett represented the Canadian Labour Congress and the Ontario Federation of Labour.

Read the decision.

Lawyers

Steven Barrett, Ethan Poskanzer

Practice Areas

Appeals & Judicial Review, Constitutional Law, Labour Law