It is expected that on Friday, the Supreme Court of Canada will
render a decision which will determine whether RCMP members have
the right to form an independent association to handle collective
bargaining with its employer, the Federal Government.
Currently, RCMP members are represented by the Staff Relations
Representation Program, an association imposed on them under the
Two RCMP employer associations, the Mounted Police Association
of Ontario and Mounted Police Association of British Columbia,
brought forth a challenge under the Charter of Rights and
Freedoms. The associations argued that the RCMP regulations
contravene the employees' right to freedom of association under
section 2(d) of the Charter. Essentially, the
associations' position is that the employees have the right to
bargain with their employer through a union of their own choice and
that RCMP Management must bargain in good faith over the terms and
conditions of employment.
The matter was first considered in 2009 by the Ontario Superior
Court in Mounted Police Association of Ontario v. Canada (Attorney
General), 2009 CanLII 15149 (ON SC). The Superior Court sided with
the employer associations, deciding that the regulations
contravened section 2(d) of the Charter as it "denies members
of the RCMP the freedom to form an independent association for the
purpose of collectively bargaining in relation to workplace
The Ontario Court of Appeal in 2012 reversed the lower
court's decision, finding that the regulations were not
unconstitutional. The Court of Appeal decided that the
lower court's interpretation of collective bargaining was
"robust" and too expansive. In considering freedom
of association, the Court of Appeal determined that the central
question to be asked was whether it was "effectively
impossible for the workers to act collectively to pursue workplace
issues in a meaningful way", which it concluded was not the
case. Section 2(d) was held to protect the employees'
right to make collective representations and to have those
collective representations considered in good faith, but did not
require that the employer "recognize and negotiate with"
the professional associations.
The upcoming Supreme Court of Canada decision on the
interpretation of section 2(d) of the Charter will be of interest
as it will address the scope of the constitutional protection for
collective bargaining, and in particular clarify how the Charter
protected freedom of association applies in the labour context.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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