Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363

The Ontario Court of Appeal clarified the scope of section 2(d) of the Charter, freedom of association, in the context of workers’ collective bargaining rights, in considering the constitutionality of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“PSLRA”), and s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (“Regulations”). The Court held that s.96 did not violate the Charter rights of the RCMP members and allowed the Attorney General’s appeal. It also held that the exclusion of RCMP members from the PSLRA did not violate s. 2(d) of the Charter and dismissed the RCMP’s cross-appeal. 

Section 96 creates the Staff Relations Representative Program (“SRRP”) which represents the respondents’ members. Though the SRRP is a vehicle for RCMP members’ concerns, it does not engage in good faith negotiations on their behalf nor is it institutionally independent from management. The respondents argued that section 2(d) of the Charter guarantees their right to collective bargaining power and accordingly, the right to engage in negotiations with management independent of the SRRP. Justice Juriansz rejected the respondents’ argument and allowed the Attorney General’s appeal. According to Juriansz JA, Fraser stands for the proposition that a government employer has a positive obligation under 2(d) to engage in good faith negotiations with employees only when is it virtually impossible for workers to engage in collective action on their own behalf. Even in such circumstances, collective bargaining under 2(d) only encompasses the right to make collective representations and have them acknowledged in good faith. In no event does section 2(d) prescribe a particular mode of collective action preferred by federal employees. Because the respondents are able to form voluntary associations and further able to voice their workplace concerns through the SRRP, they fail the Fraser test - it is not “effectively impossible” for them to act collectively and thus the constitutional right to collective bargaining has not been triggered. 

Link to Decision

Maeve Clougherty 
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