Dunmore v. Ontario (Attorney-General), [2001] 3 S.C.R. 1016.
Application under Canadian Charter of Rights and Freedom section 2(d) (freedom of association) and section 15 (equality rights) challenging repeal of legislation allowing agricultural workers to organize and bargain collectively; Challenge to retrogressive measure; Whether positive obligation to protect vulnerable workers.
In 1994 the Agriculture Labour Relations Act (ALRA) was passed to include agricultural workers in the Province of Ontario's labour relations regime. One year later a newly elected Conservative government repealed the ALRA. The Appellants challenged both the repeal of the ALRA and the exclusion of agricultural workers from the Labour Relations Act (LRA) as an infringement of the rights of agricultural workers to associate under section 2(d) of the Canadian Charter. They also alleged discrimination against a vulnerable class of workers, in violation of the right to equality under section 15(1) of the Charter.
The Supreme Court of Canada found a violation of the right to freedom of association and did not then deal with the discrimination claim. The Court held that the distinction between positive and negative state obligations ought to be nuanced'. Repealing the protection of agricultural workers resulted in underinclusive statutory protection which substantially contributed to the violation of a constitutionally protected freedom. The Court declared the legislation repealing the ALRA to be unconstitutional to the extent that it gave effect to the exclusion of agricultural workers from the LRA. The declaration was suspended for 18 months to give the government an opportunity to enact new legislation that would minimally provide agricultural workers with the protection necessary for them to form and maintain associations.
Keywords: Dunmore v. Ontario (Attorney-General), [2001] 3 S.C.R. 1016, Migrant, Trade, Union, Rights
The Agricultural Employees Protection Act (AEPA) was passed by the Conservative Government of Ontario to comply with the Court's ruling but imposes no requirements on employers to reach collective agreements and provides no mechanism for workers to choose a union. The United Food and Commercial Workers (UFCW) are challenging the AEPA under the Charter in a new case (Fraser v. Ontario).
United Food and Commercial Workers Canada at http://www.ufcw.ca/index.cgi
This decision is an important precedent for challenging the repeal of protective legislation or other retrogressive measures. The Court also affirmed that the state has positive obligations to protect vulnerable workers from actions by private employers. The European Court took a similar approach in interpreting article 11 of the ECHR in Wilson and the National Union of Journalists et al. v. United Kingdom, referring to the Dunmore decision.
