Cases

Question 1

Vriend v. Alberta [1998] 1 S.C.R. 493

Who are the parties in the case?

Answer 1

• Vriend was employed at a college in Alberta since 1988.
• Vriend was a good employee with positive reveiws
• In 1991 Vriend disclosed that they were gay and as a result the college requested they resign. Vriend declined to resign and thus was terminated. Vriend tired to applead the termination, but was denied
• Vriend attempted to filed a complaint with the Alberta Human Rights Commission, but the Commission said that under the Individual’s Rights Protection Act (IRPA), sexual orientation was not a protected ground.

Question 2

Vriend v. Alberta [1998] 1 S.C.R. 493
What question(s) were before the court?

Answer 2

1. Did the Alberta Individual’s Rights Protection Act violate s.15 of the Charter?
2. Was this violation justified under s.1 of Charter?

Question 3

Vriend v. Alberta [1998] 1 S.C.R. 493
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 3

1. Alberta Individual’s Rights Protection Act violated s.15 of the Charter.
   In excluding sexual orientation from the IRPA’s protection, the government has, in effect, stated that “all persons are equal in dignity and rights” except gay men and lesbians. Such a message, even if it is only implicit, must offend s. 15(1).
2. The violation was not justified under s.1 of the Charter.
   The exclusion of sexual orientation from the IRPA does not meet the requirements of the Oakes test and accordingly cannot be saved under s. 1 of the Charter.

Question 4

Oakes test

Answer 4

two-step balancing test to determine whether a government can justify a law which limits a Charter right.

Rational connection: There must be a nexus between the violation and the purpose of the law enacted by the government.

Minimal impairment: The violation must impair the Charter right as little as possible.
&
Proportionate effects: The costs associated with the violation may exceed the advantage provided by the violation.

Question 5

Vriend v. Alberta [1998] 1 S.C.R. 493

Importance

Answer 5

The Vriend decision forced Alberta to protect workers from discrimination in employment based on sexual orientation against the wishes of the provinces elected government

A case that determined that a legislative omission can be the subject of a Charter violation.

Question 6

British Columbia (Public Service Employee Relations Commission) v. BCGEU [1999] 3 S.C.R. 3 
Who are the parties in the case?

Answer 6

British Columbia (Public Service Employee Relations Commission)
v.
The British Columbia Government and Service
Employees’ Union

Question 7

British Columbia (Public Service Employee Relations Commission) v. BCGEU [1999] 3 S.C.R. 3 
Facts

Answer 7

• a female firefighter (Meiorin) failed the BC Government’s minimum physical fitness standards for its forest firefighters.
• Meiorin’s union brought the grievance on her behalf
• most women have a lower aerobic capacity than most men and that, unlike most men, most women cannot increase their aerobic capacity enough with training to meet the aerobic standard

Question 8

British Columbia (Public Service Employee Relations Commission) v. BCGEU [1999] 3 S.C.R. 3 
What question(s) were before the court?

Answer 8

Did the aerobic fitness standard discriminate against women and, if so, was that discrimination justified as a BFOR?

Question 9

British Columbia (Public Service Employee Relations Commission) v. BCGEU [1999] 3 S.C.R. 3 
Reason for Meiorin test

Answer 9

The conventional approach of categorizing discrimination as “direct” or “adverse effect” discrimination should be replaced by a unified approach for several reasons.

• distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difficult to justify: few cases can be so neatly characterized
• it is disconcerting that different remedies are available depending on the stream into which a malleable initial inquiry shunts the analysis
• the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable
• the distinctions between the elements an employer must establish to rebut a prima facie case of direct or adverse effect discrimination are difficult to apply in practice
• the conventional analysis may serve to legitimize systemic discrimination
• a bifurcated approach may compromise both the broad purposes and the specific terms of the Human Rights Code
• the focus by the conventional analysis on the mode of discrimination differs in substance from the approach taken to s. 15(1) of the Canadian Charter of Rights and Freedoms

Question 10

The Meiorin test

Answer 10

1. Rationally connected
   the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job. The focus at the first step is not on the validity of the particular standard, but rather on the validity of its more general purpose
2. Adopted in good faith
   the employer must establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose
3. Reasonably necessary
   the employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer

Question 11

British Columbia (Public Service Employee Relations Commission) v. BCGEU [1999] 3 S.C.R. 3
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 11

Here, the claimant having established a prima facie case of discrimination, the burden shifts to the Government to demonstrate that the aerobic standard is a BFOR. The Government has satisfied the first two steps of the BFOR analysis. However, the Government failed to demonstrate that this particular aerobic standard is reasonably necessary to identify those persons who are able to perform the tasks of a forest firefighter safely and efficiently. The Government has not established that it would experience undue hardship if a different standard were used.

Question 12

Canada (Attorney General) v. Johnstone, 2014 FCA 110

Who are the parties in the case?

Answer 12

Canada (Attorney General) for Canada

Johnstone

Question 13

Canada (Attorney General) v. Johnstone, 2014 FCA 110

Facts

Answer 13

• Johnstone was an employee of the Canada Border Services Agency
• They had 2 small children and both Johnstone and their spouse work at Toronto International Airport
• Full-time employees are required to work 37.5 hour week, and shifts varied
• Johnstone requested a fixed schedule so they could be home with their kids.
• Employer offered a fixed scheduled if Johnstone worked part-time
• Johnstone worked part time before filing a human rights complaint for discrimination

Question 14

Canada (Attorney General) v. Johnstone, 2014 FCA 110 
What question(s) were before the court?

Answer 14

Did the employer discriminate on the basis of family status by refusing Johnstone’s request for a fixed-hour full-time schedule that would enable her to care for her children?

Question 15

Canada (Attorney General) v. Johnstone, 2014 FCA 110
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 15

The Federal Court of Appeal upheld that the employer had discriminated on the basis of family status. The court explained that not every work schedule that makes child care difficult is discriminatory. Rather in order to make out a primia facie case of family status discrimination, the employee must demonstrate the following:

• That a child is under his or her care and supervision
• That the childcare obligation at issue engages that individual’s legal responsibility for that child, as opposed to a person choice
• That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution us reasonable accessible
• That the impugned worker rule interferes in a manner that is fore than trivial or insubstantial with the fulfillment of childcare

Johnstone satisfied all the conditions.

Question 16

Canada (Attorney General) v. Johnstone, 2014 FCA 110

Result

Answer 16

The employer was ordered to pay for Johnstone’s lost wages based on the difference between the hours Johnstone worked and the hours she would have worked had she been assigned to a fixed 37.5-hour schedule as requested

Question 17

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

Who are the parties in the case?

Answer 17

Retail, Wholesale and Department Store Union, Local 580
v.
Dolphin Delivery

Question 18

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

Facts

Answer 18

R.W. is a certified union representing locked-out employees of Purolator. The union asks the British Columbia Labor Relations Board to recognize Dolphin Delivery as a subcontractor of Purolator so that it can legally enforce picketing actions in this company, without facing the possibility of legal action from the part de RW The Commission declared itself incompetent to rule on the matter and proposed to defer to Common Law. Thus, Dolphin Delivery obtains an injunction of the Court prohibiting the picketing. The R.W is pursuing the decision for violation of section 2 (b) of the Canadian Freedom of Expression Charter

Question 19

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573
What question(s) is before the court?

Answer 19

Secondary picketing in the context of a labor dispute falls within the freedom of expression granted by s. 2 (b) of the Charter, so that it could not properly be prevented by injunction?

Question 20

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 20

No, since the Charter does not apply to private litigation unrelated to government.

The majority admits first that the Canadian Charter cannot be applied in the present case: this is a private dispute concerning an employer and employees. To be valid, the government would have to be involved, for example in a civil service labor dispute. In fact, the purpose of the Canadian Charter is to protect citizens from abusive government actions.

The majority go on to recognize that the Canadian Charter, by virtue of its constitutional status, is superior to and applies to Common Law. In the instant case, the Dolphin Delivery injunction is recognized under common law. R.W argues that a court order represents the introduction of “government” into the conflict, through court action. This argument is rejected. Indeed, “considering a court order as an element of government intervention necessary to invoke the [Canadian] Charter would have the effect of broadening the scope of the Charter’s application to virtually all private litigation”, which would be postponed. completely the fundamental premises of the Canadian Charter.

Question 21

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313
Who are the parties in the case?

Answer 21

Alberta Union of Provincial Employees, Canadian Union of Public Employees and Alberta International Fire Fighters Association
Alberta Union of Provincial Employees, Canadian Union of Public Employees and Alberta International Fire Fighters Association
V.
Various Attorney Generals

Question 22

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313
Facts
What question(s) is before the court?

Answer 22

legislature in Alberta is forbidden from enacting restrictive legislation, as per s.2(d) of the Charter, that removes the right to collectively bargain and also removing the right to strike.

The position of the unions was that it is impossible to have freedom of association where the right to collectively bargain is unduly restricted and the right to strike has been severely restricted or removed altogether.

The Government of Alberta, and other intervening governments, were of the mind that there is a difference between legislative rights and constitutional rights.

Question 23

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313
How did the court rule on the question(s)?

Answer 23

S.2(d) does not protect the right to strike.

Question 24

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313

What was the reasoning that resulted in the decision?
Ledain J Ruling

Answer 24

In determining whether the right to strike is protected under s.2(d), Ledain uses three grounds of protection as a basis for analysis

1) protects individuals who want to create/join/maintain an organization
(2) protects individuals who wish to exercise in concert w/ others rights that are specifically entrenched in the Charter and finally
(3) protects individuals who wish to pursue in concert w/ others, rights that were lawful for that individual to pursue alone

The essence of LeDain’s position is that, constitutionally a group could have no greater rights than an individual has - freedom of association means the freedom to associate for purposes of activities that are lawful when performed by an individual.

Question 25

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313

What was the reasoning that resulted in the decision?
McIntyre Ruling

Answer 25

McIntyre, rejected a number of representations of the involved parties:

(1) the argument of the unions that strikes are fundamental to society/culture and indicates that this is a relatively new statutory right.
(2) rejected the idea that freedom of association encompasses all activities that are essential to the lawful goals of an association
(3) further rejected that all associational activities not motivated by the desire to do harm are protected

McIntyre embraces the proposition that there is no collective content in the freedom of association and expresses the desire that labour law is an inherently delicate balancing process and its best left to legislatures who deal w/ politics and policy. Indicates we should be exceptionally deferential when it comes to s.2(d) because it is complicated and nuanced.

Question 26

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313

What was the reasoning that resulted in the decision?
Dickson Ruling

Answer 26

• Adopts what is called a justice perspective re: entrenchment of right to strike and right to collectively bargain
• they should be treated as fundamental rights because work is central to the way of life of every individual. The only effective way for most individuals at work to improve their workplace conditions is through association.
• Adopts a liberal definition of the right to strike, deriving it from international labour law
• essential services, just as we interpret every other right definition should be broad while exceptions should be narrowly interpreted. We should have a broad expansive view of s.2(d) and if we have any restrictions that should be assessed in a s.1 analysis.

-DOESN’T accept the restricted definition of freedom of association that McIntyre had adopted. And what he says in effect is that if freedom of association protected only the right to join an association as an individual but not the legal activities for which that association is formed for, then that freedom is indeed legalistic, ungenerous and vapid.

Question 27

Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
Facts

Answer 27

• Lavigne was a college teacher who was required to pay union dues because of the check-off clause (part of the Rand formula)
• Lavigne objected to expenditures made by the union like contributions to the NDP, disarmament campaigns, and declaratory relief.

Question 28

Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
What question(s) is before the court?

Answer 28

Has there been infringement on Lavigne’s Charter rights?

Question 29

Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
How did the court rule on the question(s)?

Answer 29

The Supreme Court of Canada ruled that the collective agreement clause did no violate the Charter rights of Lavigne

Question 30

Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
What was the reasoning that resulted in the decision?

Answer 30

Four Judges ruled that the requirement for Lavigne to pay money towards causes he did not agree with did voilate section 2(d), but the violation was saved by section 1, because unions serve an important function in society in contributing to public debate

Another 3 judges ruled the section 2 (d) was no violated at all, since freedom of association does not include a freedom to not associate

Question 31

Dunmore v. Ontario (Attorney General) [2001] 3 SCR 1016

Answer 31

The Ontario legislature created a law (LRTA) that prevents farmers from organizing, a right they recently acquired, because it takes away legal support for unions.

Question 32

Dunmore v. Ontario (Attorney General) [2001] 3 SCR 1016
What question(s) is before the court?

Answer 32

(1) Does the law violate section 2 (d) of the Canadian Charter on Freedom of Association?
(2) Is it justifiable in a democratic society by the Canadian Charter?

Question 33

Dunmore v. Ontario (Attorney General) [2001] 3 SCR 1016
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 33

(1) Yes
(2) No

The Canadian Charter allows a right protected by the Canadian Charter to be restricted if this restriction is reasonably justified in a free and democratic society. One of these principles of justification is that the law must do minimal infringement of rights in order to achieve the legislative objective.

In this case, the legislative objective is to preserve family farms. The law is not the minimum breach of rights to achieve this goal - it is possible to pass other laws to achieve the same goal while infringing less on rights.

The articles of the law are declared unconstitutional.

A rule of law violating a right guaranteed by the Canadian Charter must meet the minimum impairment test

Question 34

Health Services and Support – Facilities Subcontractor Bargaining Association v. BC [2007] 2 SCR 391
Facts

Answer 34

• The Health and Social Services Delivery Improvement Act was adopted as a response to challenges facing British Columbia’s health care system. The Act was quickly passed and there was no meaningful consultation with unions before it became law
• It gave health care employers greater flexibility to organize their relations with their employees as they see fit, and in some cases, to do so in ways that would not have been permissible under existing collective agreements and without adhering to requirements of consultation and notice that would otherwise obtain
• Unions and members of the unions representing the nurses, facilities, or community subsectors, challenged the constitutional validity of Part 2 of the Act as violative of the guarantees of freedom of association

Question 35

Health Services and Support – Facilities Subcontractor Bargaining Association v. BC [2007] 2 SCR 391
What question(s) is before the court?

Answer 35

Does the act violate the freedom of association?

Question 36

Health Services and Support – Facilities Subcontractor Bargaining Association v. BC [2007] 2 SCR 391
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 36

The act did infringe on s 2(d) and was not saved by section 1.

Freedom of association guaranteed by s. 2(d) of the Charter includes a procedural right to collective bargaining. The grounds advanced in the earlier decisions of this Court for the exclusion of collective bargaining from the s. 2(d)’s protection do not withstand principled scrutiny and should be rejected.

The right to collectively bargain includes an obligation on employers to consider collective representations from employee associations in good faith and to engage in “a meaningful dialogue” with the association about those representations.

Question 37

Ontario (Attorney General) v. Fraser

Facts

Answer 37

In 2002, the Ontario Government introduced the Agricultural Employee Protection Act (“AEPA”) which excluded agricultural employees from the application of Labour Relations Act but crafted a separate labour relations regime for farm workers.
The AEPA was a response to Dunmore v. Ontario
It grants farm workers the rights to form and join an employees’ association
The employer must give an association the opportunity to make representations respecting terms and conditions of employment, and it must listen to those representations or read them.

Question 38

Ontario (Attorney General) v. Fraser
What question(s) is before the court?

Answer 38

Does AEPA infringed on farm work’s right under s 2(d) and 15 of the Charter by failing to provide effective protection for the right to organize and bargain collectively and by excluding farm workers from the protections accorded to workers in other sectors?

Question 39

Ontario (Attorney General) v. Fraser
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 39

The court ruled the the AEPA does not violate section 2(d) since it protects a right to associate and requires employers tp listen and consider “in good faith” collective representation made by employee associations. That satisfied the requirements established in Dunmore and BC Health services

Question 40

Mounted Police Association of Ontario v. Canada (Attorney General) [2015] 1 SCR ​3
Facts

Answer 40

• RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the labour relations regime governing the federal public service since collective bargaining was first introduced in the federal public service, first, under the Public Service Staff Relations Act (“PSSRA”) and now under the Public Service Labour Relations Act (“PSLRA”)
• Instead, members of the RCMP are subject to a non-unionized labour relations scheme

Question 41

Mounted Police Association of Ontario v. Canada (Attorney General) [2015] 1 SCR ​3
What question(s) is before the court?

Answer 41

Does the current labour regime deny RCMP member the right to choose/violate send 2 (d)

Question 42

Mounted Police Association of Ontario v. Canada (Attorney General) [2015] 1 SCR ​3
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 42

The s. 2(d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests. However, the current labour relations regime denies RCMP members that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence.

The government cannot enact laws or impose a labour relations process that substantially interferes with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals.

Question 43

Saskatchewan Federation of Labour v. Saskatchewan [2015] 1 SCR 245.
Facts

Answer 43

• Saskatchewan enacted the Public Service Essential Services Act, which prohibited “essential service employees” from striking. It defined these services broadly and granted the employer the unilateral right to determine which and how many employees were “essential”.
• The legislative effectively permitted the employer to ensure that large numbers of public sector workers could not engage in a strike.
• The legislation did not provide for a neutral substitute mechanism (such as interest arbitration) for determining bargaining disputes in the event of an impasse
• The Saskatchewan Federation of Labour challenged the legislation

Question 44

Saskatchewan Federation of Labour v. Saskatchewan [2015] 1 SCR 245.
What question(s) is before the court?

Answer 44

Does legislation that prohibits employees designated by the employer as “essential services” from striking infringe section 2(d) of the Charter by substantially interfering with the Charter right to meaningful collective bargaining?

Question 45

Saskatchewan Federation of Labour v. Saskatchewan [2015] 1 SCR 245.
How did the court rule on the question(s)?
What was the reasoning that resulted in the decision?

Answer 45

The Supreme Court of Canada ruled that “freedom of association” protects the right to strike overturning the
Reference Re Public Service Employee Relations Act ruling.
The right to strike is an essential part of a meaningful/is the powerhouse of the collective bargaining process in our system of labour relations. The right to strike is not merely a derivative of collective bargaining, it is an indispensable component of that right.
Where good-faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2(d).
The right to strike also promotes equality in the bargaining process.

Question 46

Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313
What question(s) is before the court?

Answer 46

The Lieutenant Governor in Council of Alberta, in accordance with s. 27(1) of the Judicature Act of that province, referred to the Alberta Court of Appeal several constitutional questions which raised two main issues:

1. (1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms
2. whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent with the Charter