Dunmore v. Ontario (Attorney General)
Encyclopedia
Dunmore v. Ontario, [2001] 3 S.C.R. 1016, 2001 SCC 94, is a leading Supreme Court of Canada
decision on the constitutional right to freedom of association
under section 2(d)
of the Canadian Charter of Rights and Freedoms
. The Court held that the Ontario provincial Labour Relations Act, which contained a clause that excluded of agricultural workers from participating, was a violation of their right to freedom of association. The impugned clause was struck down.
' Progressive Conservatives came into power and subsequently passed the Labour Relations and Employment Statute Law Amendment Act (LRESLAA) which repealed the 1994 Act and terminated any agreements made under that Act.
Tom Dunmore, Salame Abdulhamid, Walter Lumsden and Michael Doyle with support from the United Food and Commercial Workers
brought an application on behalf of the agricultural workers of Ontario to challenge the LRESLAA as a violation of their right to freedom of association and equality rights under sections 2(d) and 15(1) of the Charter respectively.
At trial the judge found that the LRESLAA did not prevent the agricultural workers from forming a labour union and that any obstacles were the result of the actions of their employers which are private parties and beyond the scope of the Charter. The decision was upheld by the Court of Appeal.
The issues before the Supreme Court was whether the LRESLAA violated section 2(d) or 15(1) of the Charter, and if so, whether it could be saved under section 1.
The majority of the Court held that section 2(d) was violated and could not be justified under section 1.
." The previous interpretation of section 2(d) which only protected individuals, said Bastarache, was insufficient. The right should be broader and should create a "positive obligation on the state to extend protective legislation to unprotected groups."
For a claimant to successfully argue that the under-inclusiveness of legislation violated his or her right to freedom of association they must "demonstrate that exclusion from a statutory regime permits a substantial interference" of their right.
Bastarache examined the LRESLAA and found that its purpose was "to establish and maintain an association of employees", which would fall under section 2(d). Though the purpose of the Act did not violate the Charter, the effect of the Act did violate the Charter. By removing the ALRA and excluding the agricultural workers, their vulnerable position was reinforced and they became substantially incapable of exercising their rights.
argued that section 2(d) did not impose any positive rights
and that there was nothing preventing the workers from forming their own association.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on the constitutional right to freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
under section 2(d)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court held that the Ontario provincial Labour Relations Act, which contained a clause that excluded of agricultural workers from participating, was a violation of their right to freedom of association. The impugned clause was struck down.
Background
In 1994, the Ontario government under the New Democratic Party of Ontario passed the Agricultural Labour Relations Act which gave trade union and collective bargaining rights to Ontario's agricultural workers. The following year Mike HarrisMike Harris
Michael Deane "Mike" Harris was the 22nd Premier of Ontario from June 26, 1995 to April 15, 2002. He is most noted for the "Common Sense Revolution", his Progressive Conservative government's program of deficit reduction in combination with lower taxes and cuts to government...
' Progressive Conservatives came into power and subsequently passed the Labour Relations and Employment Statute Law Amendment Act (LRESLAA) which repealed the 1994 Act and terminated any agreements made under that Act.
Tom Dunmore, Salame Abdulhamid, Walter Lumsden and Michael Doyle with support from the United Food and Commercial Workers
United Food and Commercial Workers
The United Food and Commercial Workers International Union is a labor union representing approximately 1.3 million workers in the United States and Canada in many industries, including agriculture, health care, meatpacking, poultry and food processing, manufacturing, textile, G4S Security, chemical...
brought an application on behalf of the agricultural workers of Ontario to challenge the LRESLAA as a violation of their right to freedom of association and equality rights under sections 2(d) and 15(1) of the Charter respectively.
At trial the judge found that the LRESLAA did not prevent the agricultural workers from forming a labour union and that any obstacles were the result of the actions of their employers which are private parties and beyond the scope of the Charter. The decision was upheld by the Court of Appeal.
The issues before the Supreme Court was whether the LRESLAA violated section 2(d) or 15(1) of the Charter, and if so, whether it could be saved under section 1.
The majority of the Court held that section 2(d) was violated and could not be justified under section 1.
Opinion of the Court
Justice Bastarache wrote the opinion for the majority. He began by describing the purpose of section 2(d) which is "to allow the achievement of individual potential through interpersonal relationships and collective actionCollective action
Collective action is the pursuit of a goal or set of goals by more than one person. It is a term which has formulations and theories in many areas of the social sciences.-In sociology:...
." The previous interpretation of section 2(d) which only protected individuals, said Bastarache, was insufficient. The right should be broader and should create a "positive obligation on the state to extend protective legislation to unprotected groups."
For a claimant to successfully argue that the under-inclusiveness of legislation violated his or her right to freedom of association they must "demonstrate that exclusion from a statutory regime permits a substantial interference" of their right.
Bastarache examined the LRESLAA and found that its purpose was "to establish and maintain an association of employees", which would fall under section 2(d). Though the purpose of the Act did not violate the Charter, the effect of the Act did violate the Charter. By removing the ALRA and excluding the agricultural workers, their vulnerable position was reinforced and they became substantially incapable of exercising their rights.
Dissent
In dissent, Justice MajorJohn C. Major
John Charles "Jack" Major, CC, QC is a Canadian jurist and was a puisne justice on the Supreme Court of Canada from 1992 to 2005....
argued that section 2(d) did not impose any positive rights
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
and that there was nothing preventing the workers from forming their own association.