One More Battle to Fight: Trade Union Rights and Freedom of Association in Canada

Three key decisions of the Supreme Court of Canada in 1987 considered the availability of the Charter's guarantee of freedom of association as legal protection for trade union rights in Canada. The cases decided that there is no constitutional protection for the legal right to strike, but did not set out the limits of constitutional protection for union rights. This paper examines several decisions from superior courts and courts of appeal since the trilogy, (particularly a 1988 decision of the Court of Appeal for the Northwest Territories) and discusses the availability of Charter protection for other trade union interests, including organizing and certification rights. It is argued that there are several grounds for testing standard Canadian collective bargaining legislation under the Charier. Assuming that a prima facie breach of the Charter can be established, the paper examines a sample of collective bargaining statutory provisions in accordance with the principles established by the courts for the application of s. 1 of the Charter, concluding that some, but not all, of such provisions would survive a vigorous application of the Charter.