Constitutional Labour Rights in Canada

Farm Workers and the Fraser Case

Overview

On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. The case involved a constitutional challenge to an Ontario statute on the grounds that it violated agricultural workers’ freedom of association and right to equality by excluding them from the statutory protection that is available to virtually all other private sector workers and by failing to provide them with alternative legislative support for meaningful and effective collective bargaining rights. Although the Court upheld the constitutionality of the legislation by an eight to one majority, it provided four different, and incommensurable, sets of reasons. For the union that instigated the litigation, Fraser is a defeat. For the labour movement and their advocates, Fraser is ambiguous. What is clear, however, is that the Supreme Court of Canada was badly divided over the scope of protection that freedom of association provides to the right to bargain collectively.

 This collection of original essays untangles the two stories that are intertwined in the Fraser decision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications.

Table of Contents

Preface  

Chapter One
Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection
Judy Fudge

Chapter Two
Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future 
Eric Tucker

Chapter Three
The Roots of Organizing Agriculture Workers in Canada
Wayne Hanley

Chapter Four
Development as Remittances or Development as Freedom? Exploring Canada’s Temporary Migration Programs from a Rights-based Approach
Kerry Preibisch

Chapter Five
Envisioning Equality: Analogous Grounds and Farm Workers’ Experience of Discrimination
Fay Faraday

Chapter Six
Harvest Pilgrims: Migrant Farm Workers in Ontario
Vincenzo Pietropaolo

Chapter Seven
The Fraser Case: A Wrong Turn in a Fog of Judicial Deference
Paul JJ Cavalluzzo

Chapter Eight
What Fraser Means For Labour Rights in Canada
Steven Barrett and Ethan Poskanzer

Chapter Nine
Labour Rights: A Democratic Counterweight to Growing Income Inequality in Canada
Derek Fudge

Chapter Ten
The International Constitution
Patrick Macklem

Chapter Eleven
Giving Life to the ILO —Two Cheers for the SCC
KD Ewing and John Hendy, QC