Ontario's highest court has released a precedent-setting
decision on the scope of the right to freedom of association under
section 2(d) of the Canadian Charter of Rights and Freedoms (the
In its decision in Independent Electricity System Operator v
Canadian Union of Skilled Workers, released on May 8, 2012, the
Ontario Court of Appeal confirmed that the Charter does not
guarantee employees work opportunities or guarantee trade unions a
right to their preferred model of collective bargaining. The court
also confirmed that the Charter protects individual rights and not
the rights of trade unions as institutions.
Construction industry collective bargaining
The Ontario Labour Relations Act, 1995 (the Act) has special
rules applicable only to construction companies and trade unions
operating within Ontario's construction industry. A series of
decisions from the Ontario Labour Relations Board (the Board)
expanded the application of these special rules to encompass many
consumers of construction services, such as school boards,
municipalities, banks and retailers. The effect of this expanded
application was to effectively guarantee that any work opportunity
created by a consumer would be given to particular trade unions
without any open tendering or competitive process.
In 2000 the Legislature responded to these difficulties by
amending the Act to create the definition of "non-construction
employer" – essentially, an employer who does not
carry on business in the construction industry for profit. A
non-construction employer is permitted to apply to the Board and
ask that it be declared strictly a consumer of construction
services and thus owing no monetary or collective bargaining
obligations to construction trade unions. Several construction
industry trade unions challenged the non-construction employer
provisions of the Act, alleging that they substantially interfered
with their members' right to freedom of association pursuant to
section 2(d) of the Charter in that their members were deprived of
guarantees of future work.
The court's decision
In a unanimous decision, the Ontario Court of Appeal affirmed
the constitutionality of the non-construction employer provisions
of the Act. The court found that the Legislature was entitled to
relieve non-construction employers from the restrictions on open
tendering that are prevalent in the construction industry, and to
draw a distinction between sellers and customers of construction
services for that purpose.
The court's decision also provides significant commentary on
the scope of associational rights under the Charter, relative to
the economic considerations inherent in the employment
relationship. In this regard, the court held that the Charter does
not guarantee employment opportunities to members of trade unions.
The court also observed that despite the loss of guaranteed work,
the unions' members retained the right to compete for any
potential work opportunity which may arise.
In addition, the court confirmed that the Charter protects
individual rights, not the rights of trade unions. In this case,
although construction trade unions would see their bargaining
rights terminated with respect to a non-construction employer,
their individual members could continue to bargain collectively
with the large number of construction companies that actually
employed them. Moreover, the court reiterated the established
principle that while employees do have a right to participate in a
collective bargaining process, they do not have a constitutional
right to participate in any particular model of collective
Ontario's highest court has confirmed that construction
industry trade unions have no constitutionally protected right to
bargain with employers who are not construction companies. In so
doing, the court has affirmed the Legislature's right to
promote competition and open tendering for construction work in
Ontario, while affirming the role of the Charter in protecting
individual, not organizational, rights.
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