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Dulling the Charter Sword for Collective Bargaining
August 20, 2012

More good news for employers at the bargaining table. TheOntario Court of Appeal has just followed the promising trend of limiting theexpansion of Charter rights into collective bargaining.

The Court followed recent Supreme Court of Canada decisions, andconfirmed that the employer has to listen to union demands and consider them. But the Charter right does not guarantee a result for the union, nor doesit guarantee a legislated dispute resolution scheme in the event of an impasse.

The case involved the Expenditure Restraint Act  (the”ERA”), which limited compensation increases for approximately 400,000 federalgovernment employees. The Department of Justice lawyers, who were given theright to unionize in 2006, argued that the ERA effectively rendered collectivebargaining on salary “useless,” and therefore infringed their freedom ofassociation under the Charter.

The Court of Appeal found that although the ERA had the effectof taking wages off the table, this did not, standing alone, infringe thefreedom of association.

The Court’s decision is a welcome step back from the SupremeCourt of Canada’s decision in Health Services and Support,especially in light of the Saskatchewan Court of Queen’s Bench’s recent decision, whichseemed to expand the protection of the Charter to the right to strike.

Associationof Justice Counsel v Canada (Attorney General),2012 ONCA 530