Section 2(d) of the Charter<\/em>, which guarantees freedom of association, has undergone substantial evolution at the Supreme Court of Canada in the past decade. Its current scope and content hold significant potential to extend robust protection and power in the workplace to a variety of models for collective workplace representation (CWR) beyond formal unionization. The dominant model of CWR in Canada has long been the Wagner model of labour relations, the hallmarks of which are majority representation and exclusivity of the bargaining agent.[1]<\/a> Outside of Canada, various CWR models operate differently than the Wagner model, including minority unionism,[2]<\/a> soft models for employee representation,[3]<\/a> and other legislated regimes, such as Australia\u2019s Fair Work Act 2009<\/em>.[4]<\/a> Despite increasing recognition of and support for complementary CWR models in Canada\u2014that is models outside of majority unionism\u2014little research to date has actively explored what non-Wagner CWR models may look like and require to be effective and viable options in Canada.[5]<\/a><\/p>\n In this article, I advance a purposive interpretation of section 2(d), one that facilitates its expansion and application beyond the Wagner model of labour relations enshrined in labour statutes across Canada. I take up the Supreme Court decision in Ontario (Attorney General) v. Fraser<\/em>[6]<\/a> as a launching point for this analysis. In this paper, I revisit Fraser<\/em> in light of subsequent Supreme Court jurisprudence on section 2(d)[7]<\/a> and read that subsequent jurisprudence in light of the Supreme Court\u2019s commitment to labour pluralism under section 2(d) as advanced in Fraser<\/em>. I argue that there is fertile ground for a richer interpretation of section 2(d). Such an interpretation would communicate a bundle of rights available to legislated CWR models in a manner decoupled from the Wagner approach in Canada.<\/p>\n The legal regulation of work in Canada has changed remarkably little in the past decades, despite a dramatic shift in labour markets. This inertia has led to increasing dissonance between labour law and labour \u201con the ground.\u201d Neoliberal economic policy, globalization, the rise of the \u201cgig economy,\u201d and the impact of technology, amongst many other factors, have led enterprises to shed direct-employment relationships in an effort to maximize profits and minimize risk and legal liability.[8]<\/a> Alongside these trends sits a decline in unionization. This decline is particularly noticeable in private sectors and in North America, where the Wagner model has been the primary legal instrument for labour organization.[9]<\/a> For example, union coverage in the private sector in Canada fell from 20.2 per cent in 2000 to 15.8 per cent in 2020.[10]<\/a><\/p>\n Unionization is increasingly out of reach, both formally and practically, for growing populations of workers. These populations include those who fall outside the direct-employment relationship,[11]<\/a> and those whose work may be characterized as precarious in nature.[12]<\/a> For instance, falling in these categories are workers in the gig economy,[13]<\/a> private home care,[14]<\/a> agriculture,[15]<\/a> and industries with high turnover and a reliance on casual labour, such as food services and retail. Many of these populations of workers would benefit from access to CWR in order to pursue common goals in the workplace. Under models that are more accessible and flexible to the current labour market landscape, they could improve their working conditions, security, and wages.<\/p>\n In light of the current labour market landscape, scholars in and outside of law have discussed the urgency and importance of rethinking approaches to labour relations.[16]<\/a> For example, literature on union revitalization considers the roles and functions of unions beyond their historical core.[17]<\/a> Less attention has been paid to considering how legal structures and institutions for collectively organizing in the workplace can function in ways that extend robust rights and protections for workers outside of traditional unionism, particularly in the Canadian context.[18]<\/a> I aim to contribute to these conversations by demonstrating that attentiveness to the core content and commitments under section 2(d) may provide a robust foundation for the development of CWR models beyond majority unionism and extend meaningful rights and protections to workers.<\/p>\n I revisit the Supreme Court decision in Fraser<\/em>[19]<\/a> as a launching point for advancing this argument. Fraser<\/em>[20]<\/a> upheld the constitutional validity of the Agricultural Employees Protection Act <\/em>(AEPA<\/em>).[21]<\/a> This statute stood in place of access for agricultural workers to the provincial Labour Relations Act <\/em>(LRA<\/em>).[22]<\/a> In brief, the AEPA<\/em> enables farm workers to form and join an \u201cemployees\u2019 association,\u201d participate in the lawful activities of the association, assemble, make representations to their employer concerning the terms and conditions of their employment, and be protected against interference, coercion, and discrimination in the course of exercising those rights.[23]<\/a> The AEPA<\/em> further provides that an employer must \u201cgive an employees\u2019 association a reasonable opportunity to make representations concerning the terms and conditions of employment,\u201d[24]<\/a> and sets out a number of non-exhaustive factors relating to assessing reasonableness.[25]<\/a> Finally, the AEPA<\/em> designates the Agriculture, Food and Rural Affairs Appeal Tribunal (AFRAAT) as the body responsible for hearing complaints and providing orders and remedies for contraventions under the Act.[26]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Fraser<\/em> is one of only two Supreme Court decisions to consider the constitutionality of a non-Wagner model of labour relations. As the only decision to uphold such a model, it was met with widespread criticism at the time of the decision.[27]<\/a> For some, Fraser<\/em> represented a retreat from the Supreme Court\u2019s 2007 Health Services and Support\u2014Facilities Subsector Bargaining Assn. v<\/em>. British Columbia<\/em>[28]<\/a> decision, which had been considered by some as constitutionally enshrining the Wagner model of labour relations. From this vantage point, the decision in Fraser<\/em> was seen as a retreat or even threat because the reasoning suggested that Wagner-style majority unionism might not be the only path to collective bargaining.[29]<\/a> Some took issue with specific pieces of the legislation in Fraser<\/em>, particularly the lack of express statutory language giving effect to a duty to bargain in good faith.[30]<\/a> For yet others, Fraser<\/em> showed potential in expanding constitutional space under section 2(d) through its recognition of labour pluralism: the possibility of a plurality of constitutionally compliant and protected legislative models for and approaches to CWR.[31]<\/a><\/p>\n Since Fraser<\/em>, a new trilogy of cases has proceeded to the Supreme Court. In its latest decisions, the Court has articulated new content required to give effect to section 2(d) and, thus, to a constitutionally valid scheme for labour organizing. Following from this recent trilogy, section 2(d) can be said to protect at least three key activities associated with collective workplace representation: (1) the right to collectively organize in the workplace free from employer reprisal;[32]<\/a> (2) the right to engage in a process of good faith collective bargaining with the employer in order to advance workplace interests;[33]<\/a> and, (3) a right to meaningful recourse (particularly, to strike) where an employer bargains in bad faith.[34]<\/a> These cases shed new light on understanding the scope and content of section 2(d). In particular, these cases provide insight as to the structural requirements and considerations attending systems of collective bargaining. Read in light of Fraser<\/em>\u2019s commitment to labour pluralism, section 2(d) may therefore extend meaningful protection to CWR models beyond the Wagner approach of majority exclusive unionism that remains the current dominant frame of reference.<\/p>\n In this article, I explore how Fraser <\/em>works with, rather than against, the recent section 2(d) jurisprudence to provide a bundle of labour rights that may be accessible and effective beyond the Wagner model. In doing so, I aim to lay a foundation for further dialogue on the potential of freedom of association to effectively protect and advance labour rights and from which to consider alternative CWR models and their viability in the Canadian labour landscape. This article proceeds in five parts. In Part 1, I outline current theoretical debates regarding freedom of association. I explain the normative commitments I understand to be communicated by section 2(d), as well as the concept of labour pluralism. These elements provide a foundation for my inquiry into the jurisprudence. In Part 2, I review the Supreme Court decision in Fraser<\/em> in greater detail. I discuss how Fraser<\/em> opened the door to a pluralistic understanding of labour rights and section 2(d). Yet, as I examine, the decision also left uncertainty about how such rights\u2014in this case, the right to a process of collective bargaining\u2014would be interpreted outside a Wagner frame. In Part 3, I examine the relationship between Fraser <\/em>and the Supreme Court\u2019s reasoning in Mounted Police Association of Ontario v. Canada (Attorney General) <\/em>(MPAO<\/em>) to elucidate in greater detail the content of the right to collectively organize in the workplace under a pluralistic approach to labour relations. In Part 4, I revisit the issue of a right to collective bargaining. I detail the critiques and debates that flowed from Fraser<\/em>. I also evaluate how a decoupled right to a process<\/em> of collective bargaining sits in relation to, and yet distinct from, the familiar Wagner-model iterations. Finally, in Part 5, I look to the Supreme Court decision in Saskatchewan Federation of Labour v. Saskatchewan<\/em> (SFL<\/em>). I argue that, read in light of Fraser<\/em>\u2019s commitment to labour pluralism, section 2(d) may provide protection for a broad range of dispute resolution mechanisms (or, \u201crecourse mechanisms\u201d) for CWR models in the future. I explore what a \u201cright to strike\u201d might look like when untethered from the constraints imposed by Wagner-model legislation. I further argue that the underlying normative features of this right provide fertile ground for its extension to other forms of recourse, both within and beyond the process of collective bargaining.<\/p>\n The evolution of section 2(d) at the Supreme Court in the past two decades has given way to substantial dialogue and debate about the nature of freedom of association and of constitutional interpretation. While the \u201coriginal Trilogy,\u201d as it is now often referred to, adopted a formalist approach to section 2(d), conferring what critics have labelled as \u201cbare\u201d rights, the line of cases since Dunmore<\/em> has seen the Court move towards what it labelled, in MPAO<\/em>, a \u201cpurposive approach\u201d to freedom of association.[35]<\/a> This purposive approach recognizes \u201cthe profoundly social nature of human endeavours\u201d and \u201cprotect[s] the individual from state-enforced isolation in the pursuit of his or her ends.\u201d[36]<\/a> This encompasses protection for:<\/p>\n (1) individuals joining with others to form associations (the constitutive approach); (2) collective activity in support of other constitutional rights (the derivative approach); and (3) collective activity that enables \u201cthose who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.\u201d[37]<\/a><\/p>\n The purposive approach to freedom of association thus emphasizes its \u201cempowering\u201d function.[38]<\/a><\/p>\n In the course of this jurisprudence, the Court\u2019s analysis and approach to section 2(d) have generated significant debate. Prominently, Brian Langille and Benjamin Oliphant take issue with the Court\u2019s approach to adopting \u201cderivative rights.\u201d Langille\u2019s interpretation of freedom of association is predicated on the idea that freedom of association encapsulates the freedom of an individual to do with others what they are free to do themselves.[39]<\/a> From this perspective, the Supreme Court\u2019s current approach misinterprets the nature of fundamental freedoms, conflating the idea of rights with freedoms and imposing correlating duties on others.[40]<\/a> In respect of the right-freedom distinction, Langille and Oliphant contend that the Supreme Court has been insufficiently attentive to the nature of the cases before it.[41]<\/a> Langille and Oliphant point to specific issues with what they label the \u201cdiagonal application\u201d of section 2(d).[42]<\/a> The diagonal application looks to whether sufficient protections exist to ensure meaningful exercise of the right in question. Necessary protections may include recognition of a derivative right, such as a right against reprisal or to collectively bargain. A derivative right also imposes a correlative duty on a third party, like employers, such as not engaging in retaliation or reprisal or engaging in a process of collective bargaining.[43]<\/a><\/p>\n The Supreme Court has paid particular attention to the \u201cdiagonal\u201d application of the Charter<\/em> in cases regarding section 2(d) to ensure associational activities can be exercised meaningfully in the labour relations context. For example, this logic underscores the decision in Fraser <\/em>in which the Court read in an implied duty of good faith bargaining into the Agricultural Employees Protection Act<\/em>.[44]<\/a> This logic was further used to ground the Court\u2019s determination of a right to strike as an \u201cindispensable\u201d component of the right to collective bargaining in SFL<\/em>.[45]<\/a> The Court has recognized that, for labour statutes to be constitutional, more than an absence of interference with protected associational activities may be required. However, for Langille and Oliphant, this may amount to a judicial sleight of hand, an improper reach beyond the role of the judiciary,[46]<\/a> and an improper transformation of fundamental freedoms into a set of rights and correlative duties on others.<\/p>\n In addition to concerns about the application of section 2(d), concerns about whether section 2(d) is the appropriate venue for such claims have arisen. For example, Langille and Oliphant argue that cases concerning access to labour organizing for vulnerable or excluded workers are more properly the purview of a section 15 equality claim than a challenge under section 2(d).[47]<\/a> This is so because, as they argue, the crux of the challenge before the courts is the exclusion of one group from a set of entitlements or benefits that other groups receive.[48]<\/a> However, advancing a claim under section 15 would present challenges on numerous fronts. First, it would be difficult to identify and establish an appropriate \u201canalogous ground\u201d and, similarly, to establish what would likely be intersectional and adverse effects claims. Second, positioning the issue as an equality rights claim, as traditionally understood under the Charter<\/em>, focuses attention away from the scope of labour rights as they ought to be understood under the constitution and towards the particular manifestation of those rights in specific statutory instruments. Moreover, some of the arguments advanced in favour of section 15 appear to rest on the formalist interpretation of section 2(d) and concerns about courts drafting a \u201cjudicial labour code.\u201d[49]<\/a> However, if one accepts a thicker account of freedom of association, as described below, section 2(d) becomes an appropriate and ideal venue for the pursuit of labour rights claims.<\/p>\n Scholars, notably Alan Bogg, have argued that the Court\u2019s approach to contextualizing freedom of association in the labour relations context is both necessary and reconcilable with a thick conception of the nature of fundamental freedoms.[50]<\/a> In particular, a thick account of the notion of \u201cfreedom\u201d under a constitution necessitates the \u201cvaluation of freedoms\u201d[51]<\/a> and acknowledges that liberty or freedom is rarely protected in an \u201cundifferentiated\u201d manner.[52]<\/a> In other words, from this perspective, substantive normative commitments to improve the position of disadvantaged groups, for example, is neither uncomfortable nor inappropriate. Flowing from this, restrictions on others\u2019 freedom\u2014due to the imposition of duties as a result of the creation of \u201cderivative rights\u201d\u2014is not inherently problematic. If the \u201cfreedom restricted by the duty is noxious or inconsequential, for example the freedom of the powerful to oppress the weak, that does not count as a strong reason against creating the derivative right.\u201d[53]<\/a> Thus, a contextual approach to section 2(d) that recognizes and seeks to ameliorate the disadvantage of workers, particularly by proscribing \u201cnoxious\u201d interference from an employer, is not only permissible but necessary to the realization of a thick account of freedom of association.<\/p>\n This article advances a similarly \u201cthick\u201d contextual account of section 2(d) as that explained by Bogg. Each of the identified \u201crights\u201d I discuss in this article\u2014a right to a process of collective bargaining; a right to good faith negotiations in the process of collective bargaining; and a right to effective dispute resolution\u2014may be characterized as \u201cderivative rights\u201d and a \u201cdiagonal application\u201d of the Charter<\/em>. The Supreme Court has, in its section 2(d) jurisprudence, adopted this approach of recognizing derivative rights, which are those necessary to ensure that the freedom may be realized in its specific contexts and having regard to its underlying purpose.[54]<\/a> In other words, as Harman puts it, \u201c[d]erivative rights allow the court to create a mechanism to bridge the void that exists between the two poles: the formal meaning and its purposive goal.\u201d[55]<\/a> Derivative rights reflect the material conditions necessary to give effect to section 2(d)\u2019s underlying purpose of equalizing bargaining power between an employer and workers, and empowering marginalized groups in society.[56]<\/a> This articulation of the nature and function of derivative rights as \u201cbridging\u201d and as denoting necessary \u201cmaterial conditions\u201d helpfully illustrates how and why recognizing these rights is essential to the effective realization of section 2(d) in the labour context.<\/p>\n In line with the Supreme Court\u2019s consistent affirmation that section 2(d) does not protect a particular model<\/em> of collective bargaining,[57]<\/a> I adopt a labour pluralism approach to examining section 2(d). I adopt the term labour pluralism as denoting a commitment to plurality and choice of organization amongst workers, but beyond the confines of trade unionism (both majority and minority), expanding instead to encompass a potentially wide array of CWR models. This approach is consistent with the ILO definition of \u201ctrade union pluralism\u201d as \u201cthe right of workers to come together and form organizations of their own choosing\u201d with sufficient independence to pursue their interests[58]<\/a> and with scholars\u2019 use of similar terms to date.[59]<\/a> There is widespread agreement about the need for new CWR models that workers may use to collectively organize in the workplace. Yet, and despite the commitment to labour pluralism evidenced in existing section 2(d) jurisprudence, few options outside the Wagner model exist in Canada today. Drawing attention to the potentially fruitful foundations laid by section 2(d) for robust protection of other CWR models, as I aim to do in this article, may provide some grounding for enriched discussion and experimentation on this front. In that vein, the analysis that proceeds does not have a particular CWR model in mind as a comparator or contrast to the Wagner model, and would resist such an approach.[60]<\/a> Rather, the labour pluralism approach I adopt is intentionally open-ended and noncommittal to any particular model of labour organization. I aim to explore how the section 2(d) jurisprudence may be understood when it is intentionally untethered from a particular model and, specifically, from the Wagner model that has long served as the benchmark\u2014both implicit and explicit\u2014in jurisprudence and scholarship on section 2(d).<\/p>\n In Fraser<\/em>, the Supreme Court was tasked with assessing the constitutionality of the AEPA<\/em>. The AEPA <\/em>was created in response to the Supreme Court\u2019s 2001 decision in Dunmore<\/em>.[61]<\/a> In that decision, the Supreme Court had found that the exclusion of agricultural workers from provincial labour law, without an alternate framework for labour relations, was unconstitutional under section 2(d). Dunmore<\/em> established that section 2(d) may require a government to enact statutory protections to give effect to freedom of association.[62]<\/a> However, it did not articulate the content or boundaries of the rights or protections afforded under section 2(d).[63]<\/a> This opened the door to the possibility of a plural approach to labour rights under section 2(d), which the majority in Fraser <\/em>advanced. The decision in Fraser<\/em> explicitly decoupled access to section 2(d) from the Wagner model of labour relations and broadened its application to other legislative CWR approaches.<\/p>\n The legal challenge to the AEPA<\/em> in Fraser <\/em>centred on three components that the respondents argued were necessary for a model of labour organizing to<\/p>\n meet the requirements of s. 2(d) under the Charter<\/em>: (1) statutory protection for majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent; (2) an LRA<\/em>-type statutory mechanism to resolve bargaining impasses and interpret collective agreements; and (3) a statutory duty to bargain in good faith.[64]<\/a><\/p>\n The majority found that much of the legal challenge rested on a particular interpretation of its 2007 Health Services<\/em> decision. This interpretation considered Health Services <\/em>as having constitutionally enshrined the Wagner model of majoritarian, exclusive unionism.[65]<\/a> As such, the Court spent some time explaining that the Health Services<\/em> decision did not constitutionalize that particular form of collective bargaining.[66]<\/a> As a result, the respondents\u2019 first argument that section 2(d) requires statutory protection for majoritarian exclusivity failed.<\/p>\n The majority opinion in Fraser<\/em> barely mentioned the second argument the respondents had put forth, which was that a Charter<\/em>-compliant model of labour relations requires a statutory mechanism to resolve bargaining impasses and interpret collective agreements. This argument reflects the need for an effective dispute resolution process. Labour relations statutes typically provide for both strike activity and a variety of procedural mechanisms, such as grievances and arbitration, to resolve disputes within and beyond the collective bargaining process. Dispute resolution mechanisms, particularly arbitrations, also function to interpret and apply collective agreement provisions. These kinds of processes or mechanisms are necessary to ensure good faith bargaining on the part of an employer. In fact, in Fraser<\/em>, it was specifically argued that, without an effective dispute resolution mechanism, there was no practical ability to enforce a duty to bargain in good faith.[67]<\/a> As will be taken up in greater depth in the fifth part of this article, effective recourse and dispute resolution processes are necessary to ensure that a CWR model can support the meaningful pursuit of collective goals in the workplace, the core purpose of freedom of association guaranteed under section 2(d). In the Fraser<\/em> decision, the only remarks concerning this aspect of the challenge were to the effect that it was premature, as the complaints process available under the AEPA<\/em> had not yet been sufficiently tested.[68]<\/a><\/p>\n The third proposed requirement of a duty to bargain in good faith was the focal point of the Fraser<\/em> decision, and the critiques that followed it. On its face, the legislation provides that the employee association must be given a reasonable opportunity to make representations to an employer[69]<\/a> and that an employer must \u201clisten\u201d to those representations or acknowledge receipt of written representations.[70]<\/a> In other words, the legislation at issue did not explicitly impose a correlating duty or obligation on an employer to bargain in good faith. Prior to Fraser<\/em>, the Court\u2019s decision in Health Services<\/em> had directly considered the duty to bargain in good faith and held that section 2(d) must protect more than a mere right to make representations.[71]<\/a> As such, the majority of the Court explained in Fraser<\/em> that the \u201cright of an employees\u2019 association to make representations to the employer and have its views considered in good faith is a derivative right under s. 2(d) of the Charter<\/em>, necessary to meaningful exercise of the right to free association.\u201d[72]<\/a> The majority referred back to its decision in Health Services<\/em> that section 2(d) protects \u201cgood faith bargaining\u201d and that this is not \u201climited to a mere right to make representations to one\u2019s employer, but requires the employer to engage in a process of consideration and discussion.\u201d[73]<\/a> The majority in Fraser<\/em> summarized the right to a process of collective bargaining under section 2(d) as including a requirement for parties to meet and engage in \u201cmeaningful dialogue\u201d[74]<\/a> and enabling a plurality of bargaining models, methods, processes and timelines to come within its scope.[75]<\/a> It also clarified, however, that section 2(d) does not require parties to conclude an agreement, nor does it guarantee a legislated dispute resolution mechanism in the event of a bargaining impasse.[76]<\/a><\/p>\n Applying this to the APEA<\/em>, the majority in Fraser<\/em> found that sections 5(6) and 5(7) incorporated an implied duty to bargain in good faith on the part of an employer, satisfying the requirements of section 2(d).[77]<\/a> Their conclusion rested on three considerations. First, a purposive interpretation of the relevant statutory provisions leads to the inevitable conclusion that more than pro forma<\/em> listening is required. A purposive interpretation of these provisions would suggest that they are meant to provide assurance that an employer will consider the representations made.[78]<\/a> Second, the presumption of Charter<\/em> compliance supports this purposive statutory interpretation.[79]<\/a> Third, Hansard documents evidence the legislature\u2019s intention to comply with the requirements of section 2(d) of the Charter<\/em> in enacting the AEPA<\/em>.[80]<\/a> As a result, the majority concluded that the statutory provisions of the AEPA<\/em> imply an obligation on an employer to consider the representations made in good faith.<\/p>\n The Court\u2019s reasoning on the issue of the duty to bargain in good faith was significant for several reasons. First, as mentioned above, the Court had identified the existence of this right under section 2(d) in its Health Services<\/em> decision, though this was decided in the context of a Wagner model labour relations regime. Second, the concept of the \u201cduty to bargain in good faith\u201d has historically been interpreted with specific requirements in the context of provincial labour law, that is, the law that applies in unionized workplaces. Whether and to what extent this duty and its interpreted elements would apply to a CWR model outside of a unionized environment was of great interest, concern, and speculation. While the Court\u2019s reasons in Fraser<\/em> firmly decided that the duty to bargain in good faith did, in fact, extend to the AEPA<\/em>, it did not identify whether the elements that had been developed under existing labour relations legislation were also imported to this new context, a matter I take up further in section 4.<\/p>\n Following the release of the Fraser<\/em> decision, critiques from several vantage points began to surface. Many critiques presented an overarching concern that decoupling section 2(d) from the Wagner model of labour relations was a threat to the future of the union movement and labour relations.[81]<\/a> Expanding constitutional space for other models of CWR, from this vantage point, necessarily weakens the labour movement, as such models themselves will be weaker or offer thinner rights than those afforded through the Wagner model. These critiques echo Justice Abella\u2019s dissent in Fraser<\/em>, which emphasized the necessity of power created by majority exclusivity under Canada\u2019s model of labour relations.[82]<\/a><\/p>\n What is clear from the critiques and commentary flowing from Fraser <\/em>is that the notion that section 2(d) extends protection to a plurality of labour models does not appear to be contested, though the strength and desirability of labour pluralism, itself, is. As such, it is relatively uncontroversial to state that Fraser <\/em>explicitly enshrined a labour pluralism approach to and vision of section 2(d). The next section discusses the relationship between this outcome and the Supreme Court\u2019s subsequent analysis in MPAO<\/em>. Together, they provide some clarity in understanding the necessary structure of a CWR model that will be compliant with section 2(d). Section 2(d) may also offer meaningful rights to non-Wagner labour models in respect of collective bargaining and dispute resolution. As I explore in subsequent sections, section 2(d) may thus lay a strong foundation for alternative CWR models to be effective vehicles for labour organizing and collective action in the workplace, countering existing critiques concerning the strength and desirability of non-Wagner labour models.<\/p>\n While Fraser<\/em> had firmly committed to a labour pluralism approach to section 2(d), it left many questions about what that meant, particularly given that most cases under section 2(d) relate to unionized environments. The Supreme Court\u2019s decision in MPAO<\/em> provided renewed opportunity to clarify its approach to section 2(d) and how it operates, specifically, in relation to non-Wagner models of labour organizing. MPAO<\/em> is a notable case because, like Fraser<\/em>, it considered the constitutionality of a non-union CWR regime, for the Royal Canadian Mountain Police (RCMP). At the time of the case, the RCMP was excluded from unionization under the Public Service Labour Relations Act<\/em>, and instead had an alternate regime set up through legislation.[83]<\/a> The exclusion of the RCMP from access to unionization had been previously held not to violate the constitution.[84]<\/a> The trial decision in MPAO<\/em> was rendered prior to Fraser<\/em> and had found that the legislation at issue was unconstitutional. However, the appeal, heard after the Supreme Court decision in Fraser<\/em>, relied on that judgment to overturn the trial decision.[85]<\/a> At the Supreme Court, the majority found the legislation unconstitutional under section 2(d).<\/p>\n The CWR regime at issue in MPAO<\/em> was composed of three bodies. First, there was a Staff Relations Representation Program (the \u201cSRRP\u201d) through which members could advance workplace concerns.[86]<\/a> Second, \u201cconcerns regarding pay and benefits [were] communicated to management through the RCMP Pay Council process.\u201d[87]<\/a> Third, the Mounted Police Members\u2019 Legal Fund, funded through membership dues, \u201cprovide[d] legal assistance to RCMP members for employment-related issues.\u201d[88]<\/a> Among these three bodies, the SRRP was central to the regime and to the Court\u2019s consideration of the constitutional challenge.[89]<\/a> The SRRP was the vehicle through which RCMP members addressed all non-pay work-related matters and was \u201cthe only form of employee representation recognized by management.\u201d[90]<\/a> At the heart of the majority decision in MPAO<\/em> were twin elements necessary to a meaningful structure of labour organizing and CWR: choice and independence. The legislation at hand did not allow either of these elements. The unilateral designation of organizational structure and representatives and their close ties to management under the legislative regime were found insufficient to enable a meaningful exercise of the rights attending freedom of association.<\/p>\n The majority in MPAO<\/em> was explicit in drawing attention to \u201cthe desirability of various forms of workplace representation.\u201d[91]<\/a> It signalled that section 2(d) is capable of extending rights and obligations to various CWR models and affirmed a labour pluralism approach to freedom of association.[92]<\/a> The majority located a \u201cright to collective bargaining\u201d within the broader \u201cright of employees to meaningfully associate in the pursuit of collective workplace goals\u201d protected by section 2(d).[93]<\/a> Where a process or structure \u201csubstantially interferes with the possibility of having meaningful collective negotiations on workplace matters,\u201d it will impair freedom of association.[94]<\/a> For example, measures that disrupt the balance of power between employer and employees or that reduce the negotiating power of employees may substantially interfere with meaningful collective bargaining and thus violate section 2(d).[95]<\/a> In its opinion, the majority further described \u201ca process of collective bargaining\u201d as \u201cmeaningful association in pursuit of workplace goals.\u201d[96]<\/a> Such a process \u201cincludes the employees\u2019 rights to join together, to make collective representations to the employer, and to have those representations considered in good faith.\u201d[97]<\/a> This suggests that \u201ca process of collective bargaining\u201d should not be understood in a narrow sense as the specific part of a labour relationship during which active negotiation of terms and conditions of work takes place. Rather, the Supreme Court may be adopting a broader understanding of this concept that inherently connects to the larger structure of labour organizing through which the act of bargaining takes place.<\/p>\n The majority concluded that \u201ca meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective Along with choice, employees must have sufficient independence from management within which to exercise their choice, control associational activities, and have accountable representatives. Together with choice, the criterion of independence better \u201censures that the activities of the association reflect the interests of the employees.\u201d[101]<\/a> These two elements\u2014choice and independence\u2014aim to support a meaningful process of collective bargaining, as understood in the narrower sense of active negotiation and in the broader sense of shaping the structure and operation of a CWR model and its representative body. Moreover, the majority in MPAO<\/em> reminded that, while the Wagner model is one model that will satisfy these requirements, it is not the only model, reaffirming its labour pluralism approach to section 2(d) and the right to a process of collective bargaining, broadly conceived of.[102]<\/a> Thus, while section 2(d) does not guarantee \u201caccess to a particular<\/em> model<\/em> of labour relations,\u201d[103]<\/a> it does guarantee particular<\/em> features<\/em> of a CWR model: choice and independence. MPAO<\/em> explicitly connected the significance of the organizational criteria to the right to a process of collective bargaining, illustrating how structural considerations attending CWR models in turn influence the ability for the right of collective bargaining to be meaningfully realized. The next section turns to examine this right\u2014to a process of collective bargaining\u2014directly.<\/p>\n A right to collective bargaining under section 2(d) had been recognized by the Supreme Court four years prior to Fraser<\/em>, in Health Services<\/em>, in the context of a unionized environment where statutory protections surround the collective bargaining process. Fraser<\/em> was the first case to adjudicate a right to collective bargaining outside the unionized environment. The majority in Fraser<\/em> affirmed that a right to a process of collective bargaining existed generally under section 2(d) and articulated criteria adhering to this right, including engagement in \u201cmeaningful dialogue.\u201d[104]<\/a> Nonetheless, the outcome in Fraser<\/em> generated substantial critique and numerous questions about whether and how the rights typically attending collective bargaining in a unionized environment would apply under the AEPA<\/em> and, more generally, outside of the union context. This section reviews these critiques and the subsequent jurisprudence at both the Supreme Court and the AFRAAT to explore the contours of a right to collective bargaining under a labour pluralism approach to section 2(d).<\/p>\n Critiques of Fraser<\/em> generally ran along two axes, one procedural and the other substantive. The procedural axis of critique questioned the Court\u2019s jurisdiction to read in an implied duty to bargain in good faith in the AEPA<\/em>, while the substantive critique focused on whether the content of that duty was watered down by the language of the AEPA<\/em>. Reading the duty to bargain in good faith into the AEPA<\/em> was seen as a questionable step for a number of reasons. First, none of the parties argued that it included such a duty. Second, there was nothing in the language of the statute that suggested the existence of such a duty. Third, the Ontario government explicitly stated that the statute was not designed to \u201cextend collective bargaining to agricultural workers.\u201d[105]<\/a> Further, the Ontario legislature had passed the AEPA<\/em> five years before the Supreme Court rendered the Health Services<\/em> decision. Some argued that to read in a presumption that the legislature intended to comply with the Charter<\/em> amounted to a \u201cjudicial sleight of hand\u201d in circumstances where the content of Charter<\/em> rights had dramatically changed since the legislation\u2019s passage.[106]<\/a><\/p>\n In addition, several scholars argued that the content of the right to collective bargaining was weakened by Fraser<\/em>, \u201cwater[ing] down the right to bargain collectively from imposing a duty to bargain in good faith to one requiring good faith consideration.\u201d[107]<\/a> In Health Services<\/em>, the duty to bargain in good faith, as detailed by the Court, was strongly influenced by labour board jurisprudence.[108]<\/a> Fraser<\/em>, however, seemed to create \u201ca much more ambiguous and seemingly less robust obligation under subsection 2(d).\u201d[109]<\/a> In particular, the requirement of good faith bargaining, read as a duty to \u201cconsider\u201d employee representations in Fraser<\/em>, could be seen as a failure to impose any substantive obligations on an employer, such as providing a real opportunity for discussion or detailed response to representations.[110]<\/a> While confirmation of having received and reviewed representations would likely comport with the requirements of the AEPA<\/em>, this kind of response would more likely be seen as insufficient to satisfy the duty of good faith bargaining as it applies in the union context.[111]<\/a> This has been posited as creating two tiers of the duty to bargain in good faith. Per Fraser<\/em>, the lower tier, applying to legislation outside of the LRA<\/em>, requires only \u201cmeaningful discussion\u201d and the right to make representations.[112]<\/a> Whereas, for employees formally represented by a union under provincial labour law, the Court in Health Services<\/em> spoke of the duty to bargain in good faith in a more robust manner, including engagement in meaningful dialogue between the parties and a willingness to exchange and explain their positions.[113]<\/a><\/p>\n Overall, the thrust of substantive critiques following Fraser<\/em> appears to rest on a comparison with Wagner model statutory requirements attending collective bargaining. From this vantage point, there is a resulting dissatisfaction that section 2(d) was not interpreted to constitutionalize the right to collective bargaining as it is understood in that specific context.[114]<\/a> It makes sense that the Court in Health Services<\/em> drew heavily on labour relations jurisprudence, given that the dispute at issue arose in a unionized environment.[115]<\/a> Conversely, in Fraser<\/em>, the Court was presented with a statute that adopted the language of \u201crepresentations\u201d. As such, its reasons incorporated that terminology, while explaining that section 2(d) required meaningful dialogue and good faith consideration.[116]<\/a> Although the differences between Health Services<\/em> and Fraser<\/em> go beyond a distinction in terms,[117]<\/a> they relate more directly to differences in the existing statutory regimes than a different standard or scope of section 2(d). While the specific application of section 2(d) in Health Services<\/em> and Fraser<\/em> may be different, given the different statutory contexts under which the cases were decided, the jurisprudence nonetheless evidences similar substantive commitments regarding freedom of association.<\/p>\n Bogg and Ewing identified three aspects of good faith bargaining left unclear in the wake of Fraser<\/em>: a \u201cduty to engage in dialogue about the representations,\u201d a \u201cduty to negotiate about the representations,\u201d and a \u201cduty to conclude an agreement relating to the representations.\u201d[118]<\/a> Subsequent jurisprudence has affirmed that section 2(d) does not include a duty to conclude an agreement as it does not guarantee a particular outcome.[119]<\/a> However, subsequent jurisprudence supports a likely interpretation that the right to collective bargaining requires dialogue and negotiation of some kind\u2014an active exchange and consideration of each parties\u2019 positions and interests\u2014and will not be satisfied by a mere right to make representations or by pro forma <\/em>listening or receipt of such.<\/p>\n The Supreme Court\u2019s decision in MPAO<\/em> reaffirmed the core purpose and function of the right to a process of collective bargaining, one that evidences a purposive approach to interpreting section 2(d). Such an interpretation would thus work against a formalist, narrowed, or thin understanding of the right, as some critiques following Fraser <\/em>suggested.[120]<\/a> At the time that MPAO<\/em> was decided, it is reasonable to think the Supreme Court was alive to the lingering questions and debates about the right to collective bargaining left in the wake of Fraser<\/em>.[121]<\/a> In MPAO<\/em>, the majority took up the opportunity to affirm their consistent position from Health Services<\/em> and Fraser<\/em> that the right to a process of collective bargaining requires meaningful dialogue and engagement, beyond I.\u00a0 Freedom of Association and Labour Pluralism<\/h1>\n
II. Ontario v. Fraser<\/em>: Opening the Door to Labour Pluralism<\/h1>\n
III. The Structure of Collective Bargaining under a Labour Pluralism
\nApproach to Section 2(d)<\/h1>\n
\ninterests and meaningfully pursue them.\u201d[98]<\/a> Elaborating on the role of choice, the majority determined that employees must be able to exercise a sufficient degree of choice in relation to \u201cthe ability to form and join new associations, to change representatives, to set and change collective workplace goals, and to dissolve existing associations.\u201d[99]<\/a> In other words, a CWR model should adopt a \u201clabour pluralism\u201d approach as that term has been used in its more traditional sense\u2014a choice of representative body.[100]<\/a> Moreover, this criterion of choice reflects an understood link between the structure of a CWR model and a \u201cmeaningful\u201d process of collective bargaining. A choice of representative body for workers will operate to place greater power in the hands of workers, and this in turn better ensures that their interests will be advanced in negotiations with an employer.<\/p>\nIV. Collective Bargaining and Good Faith Negotiations under a Labour Pluralism Approach to Section 2(d)<\/h1>\n