The Ontario Court of Appeal considered whether the Expenditure Restraint Act ("ERA") infringed on the Association of Justice Counsel’s (“AJC”) s.2(d) Charter rights. This is the first case under the ERA to reach a Court of Appeal. The Court of Appeal held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.
The AJC alleged that the ERA rendered their right to collectively bargain on salary under s. 2(d) of the Charter with the Treasury Board Secretariat ("TBS") useless between the years of 2006 - 2011. The application judge found infringement of the AJC’s s.2(d) rights but upheld the ERA under s.1 of the Charter. The Attorney General appealed the application judge’s holding that the ERA infringed s.2(d), and the AJC cross-appealed that the provisions were justified under s.1. The court applied the "effectively impossible" test outlined in Fraser, which states that legislation violates s. 2(d) if it renders the pursuit of collective bargaining goals "effectively impossible." The court found that AJC's claim did not satisfy the "effectively impossible" test. Relying on Fraser, the court held that s. 2(d) guarantees a process of collective bargaining but not necessarily a result. Further, as stated in Fraser, s. 2(d) only protects the right to collective bargaining in the minimal sense of good faith. Applying the Fraser test, the court found that the AJC had engaged in a meaningful process of collective bargaining over a two-year period with TBS prior to the enactment of the ERA. During that process, the Court found that TBS had considered the demands of AJC in good faith. Therefore, the court held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.
Haran Viswanathan
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