IN THE SUPREME COURT OF CAMi9DA (ON APPEAL FROM THE COURT OF APPEAL FOR OWTAFFIO) BETWEEN:

ATTORNEY GE

10

MICHAEL J. F W E R on his own behalf and on 3PehaSlf of the UN\EITIEDFOOD D COMMERCIAL WORKERS UNION CMAIEB, XIN YUAN UU, JUUA McGORMAFd and BILLIE40 CHURCH RespndleraZs (Appellants in tlhe Court of Appeal)

- and -

- and ATTORNEY GENERAL OF CANADA, ATTORNEY GIENERAL OF ALBERTA5 ATTORNEY GENERAL OF BR1.TM-IGOLUMBEA, ATTORNEY GENERAL OF MEW BRUNSWlECK, AITOSENEY GENERAL OF NWFOUEdDLAUD % LABRADOR, ATTORNEY GENERAl OF NOVA SCO'F1A, ATTORNEY E E N E M L OF QUEBEC and ATTORNEY GENERAL OF S M K A T C H W W Interveners

RESPONDENTS' FACTUU

CAVALLUZZO HAYES SHILTON MclNTYRE & CORNISH LLP 300 - 474 Bathurst Street Toronto, ON M5T 2S6 Paul J.J. Cavalluzzo Fay C. Faraday Tel: (416) 964-1115 Fax: (416) 964-5895 E-mail: [email protected] ffaraday @ cavalluzzo.com Counsel for the Respondents Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Xin Yuan Liu, Julia McGorman and Billie Jo-Church

NELLIGAN O'BRIEN PAYNE LLP 1500 - 50 O'Connor St. Ottawa, ON K1P 6L2 Dougald E. Brown Tel: (613) 231-8210 Fax: (613 ) 788-3661 E-mail: dougald.brown@ nelligan.ca

Agent for the Respondents Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Xin Yuan Liu, Julia McGorman and Billie Jo-Church

ORIGINAL TO: The Registrar TO: ATTORNEY GENERAL OF ONTARIO Constitutional Law Branch 720 Bay Street, 4th Floor Toronto, ON M5G 2K1

BURKE-ROBERTSON 70 Gloucester Street Ottawa, ON K2P OA2

Robin K. Basu, LSUC #32742K Tel: 41 6-326-4476 Fax: 41 6-326-40'15 robin.basu @ ontario.ca

Robert E. Houston, Q.C. Tel: 613-566-2058 Fax: 613-235-4430 rhouston@ burkerobertson.com

Shannon M. Chace, LSUC #46285G Tcl: 416 326 4471 Fax: 41 6-326-4015 Counsel for the Appellant Attorney General of Ontario

Agent for the Appellant Attorney General of Ontario

Heenan Blaikie LLP Bay Adelaide Centre 333 Bay Street, Suite 2900 PO Box 2900 Toronto, ON M5H 2T4

Heenan Blaikie LLP 300-55 Metcalfe Street Ottawa, ON K1P 6J5

John D. R. Craig Tel: 41 6-360-3527 Fax: 41 6-360-8425 jcraig @ heenan.ca

Judith Parisien Tel: 613-236-4673 Fax: 6 13-236-9632 jparisien @ heenan.ca

S. Jodi Gallagher Tel: 41 6-360-3555 .Fax: 416-360-8425 [email protected]

Counsel for the lntervener Ontario Federation of Agriculture

Agent for the lntervener Ontario Federation of Agriculture

Attorney General of Canada Bank of Canada Building - East Tower 234 Wellington Street, Room 1148 Ottawa, ON KIA OH8

Deputy Attorney General of Canada Justice Canada Bank of Canada Building 234 Wellington Street, Room 1212 Ottawa, ON K1A OH8

Anne Turley Tel: 613-941-2347 Fax: 613-954-1920 anne.turley @ justice.gc.ca

Christopher Rupar Tel: 613-941-2351 Fax: 613-954-1920 [email protected] Agent for the lntervener Attorney General of Canada

Attorney General of Alberta 9833-109 Street Bowker Building, 4th Floor Edmonton, AB T5K 2E8

Gowling Lafleur Henderson LLP Barristers and Solicitors 2600-160 Elgin Street Ottawa, ON K1P 1C3

Rod Wiltshire Tel: 780-422-7145 Fax: 780-425-0307 [email protected]

Henry S. Brown, Q.C. Tel: 613-233-178 1 Fax: 613-788-3433 henry.brown @gowlings.com

Counsel for the lntervener Attorney General of Alberta

Agent for the lntervener Attorney General of Alberta

Attorney General of British Columbia Legal Services Branch 1301-865 Hornby Street Vancouver, BC V6Z 2G3

Burke-Robertson Barristers & Solicitors 70 Gloucester Street Ottawa, ON K2P OA2

Neena Sharma Tel: 604-660-0224 Fax: 604-660-6797 [email protected]

Robert E. Houston, Q.C. Tel: 613-566-2058 Fax: 6 13-235-4430 rhouston@ burkerobertson.com

.Counsel for the lntervener Attorney General of British Columbia

Agent for the lntervener Attorney General of British Columbia

Attorney General of New Brunswick Centennial Building Room: 445, Floor: 4th 670 King Street Fredericton, NB E3B 1G I

Gowling Lafleur Henderson LLP Barristers and Solicitors 2600-160 Elgin Street Ottawa, ON K1P 1C3

Gaetan Migneault Tel: 506-453-2222 Fax: 506-453-3275

Henry S. Brown, Q.C. Tel: 613-233-1781 Fax: 613-788-3433 henry-brown@ gowlings.com Agent for the lntervener Attorney General of New Brunswick

Attorney General of Newfoundland & Labrador Office of the Minister Department of Justice P.O. Box 8700 4th Floor, East Block Confederation Building St. John's, NL A1 B 4J6 Tel: Fax:

709-729-2869 709-729-0469

Burke-Robertson Barristers and Solicitors 70 Gloucester Street Ottawa, ON K2P OA2 Robert E. Houston, Q.C. Tel: 613-566-2058 Fax: 613-235-4430 rhouston@ burkerobertson.com Ottawa Agent for the lntervener Attorney General of Newfoundland & Labrador

Attorney General of Nova Scotia Department of Justice Nova Scotia 5151 Terminal Road, 4th floor P.O. Box 7 Halifax, NS B3J 2L6

Gowling Lafleur Henderson LLP Barristers and Solicitors 160 Elgin Street, 26th Floor Ottawa, ON K1 P 1C3

Ed Gores Tel: 902-424-4030

Henry S. Brown, Q.C. Tel: 613-233-1781 Fax: 613-788-3433 henry.brown@ gowlings.com Ottawa Agent for the lntervener Attorney General of Nova Scotia

Attorney General of Quebec 1200 route de ~ ' ~ g l i s2e e , itage Quebec, QC G I V 4M1

Noel & Associes s.e.n.c.r.1. 111, rue Champlain Gatineau, QC J8X 3R1

Me Marise Visocchi Tel: 41 8-643-1477 Fax: 41 8-646-1696 mvisocchi @ justice.gouv.qc.ca

Me Pierre Landry Tel: 819-771-7393 Fax: 8 19-77 1-5397 [email protected] Ottawa Agent for the lntervener Attorney General of Quebec

Attorney General of Saskatchewan Department of Justice, Constitutional Law 8th Floor - 1874 Scarth Street Regina, SK S4P 3V7

Gowling Lafleur Henderson LLP Barristers and Solicitors 2600-160 Elgin Street Ottawa, ON K1P 1C3

Graeme Mitchell Tel: 306-787-8385 Fax: 306-787-91 11

Brian A. Crane Tel: 613-233-178 1 Fax: 613-563-9869 brian.crane @ gowlings.com Ottawa Agent for the Attorney General of Saskatchewan

TABLE OF CONTENTS

PART I:

OVERVIEW AND STATEMENT OF FACTS

A.

Overview of the Respondents' Position . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B.

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. 2. 3.

Agricultural Production in Ontario: The Rise of Agribusiness . . . . 4 Ontario's Agricultural Work Force . . . . . . . . . . . . . . . . . . . . . . . . . 6 History of Agricultural Workers' Exclusion From LabourLaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 a. b.

c. 4. 5.

Overview . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 9 The Agricultural Labour Relations Act Farm Workers' Short-Lived Right to Bargain Collectively . . . . 11 The Dunmore Decision . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Agricultural Employees Protection Act . . . . . . . . . . . . . . . . 14 Agricultural Workers' Current Attempts to Unionize . . . . . . . . . 17

PART II:

RESPONDENTS' POSITION ON THE ISSUES . . . . . . . . . . . . . . . . . 20

PART Ill:

LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A.

Section 2(d): The Freedom of Association . . . . . . . . . . . . . . . . . . . . . . 1. Overview of the Respondents' Position . . . . . . . . . . . . . . . . . . . 2. Framework for Legal Analysis on Section 2(d) . . . . . . . . . . . . . 3. Collective Bargaining is Protected Under Section 2(d) . . . . . . . . a. b. c. 4.

21 21 22 23

Interpretive Principles on the Scope of s . 2(d) . . . . . . . . . 23 Scope of Charter Protection for Collective Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Importance of Canadian Labour Relations History . . . . . 28

Agricultural Workers' Right to Bargain Collectively isviolated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

a. b. c. d.

Labour Relations History: The Need for . .. . . . Statutory Support . . . . . . . . . . . . . . . . . . . . . . . Labour Relations History: Evidence of the Supports Needed for Effective Collective Bargaining . . . The AEPA and LRA Deny Farm Workers Protection for the Right to Bargain Collectively . . . . . . . . . . . . . . . . No Evidence that the AEPA Protects Collective Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 33 34 37

5.

Government Responsibility for the Violation of Section 2(d)

. . . 39

Section 15: The Right to Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 1.

Principles of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

2.

Differential Treatment Based on Analogous Ground of Status as Agricultural Workers . . . . . . . . . . . . . . . . . . . . . . . . . 44 The Differential Treatment is Substantively Discriminatory . . . . 51

3.

Section 1 : The Violations of the Charter are Not Demonstrably Justified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 1. 2. 3. 4. 5.

D.

Interpretive Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Is there a sufficiently pressing and substantial objective? . . . . . 54 Rational Connection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Does the violation impair Charter rights as little aspossible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Deleterious Effects of the Legislation . . . . . . . . . . . . . . . . . . . . 58

The Remedy Ordered by the Court of Appeal . . . . . . . . . . . . . . . . . . . 58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

PART IV:

SUBMISSIONS ON COSTS

PART V:

ORDERS SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

PART VI:

TABLE OF AUTHORITIES

PART VII:

STATUTORY PROVISIONS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

.......................... .. . . . 63

-iii-

GUIDE TO ABBREVIATIONS Document references

Aff - Affidavit AR - Appellant's Record Cr-ex - Transcript of Cross-examination Exh - Exhibit Line - I. QQ. - Questions U-Ans - Undertaking Answer

Affidavits (Specific)

Affidavit of Tanya Basok (26 March 2004) - Basok Aff Affidavit of George L. Brinkman (27 October 2004) - Brinkman Aff Affidavit of Billie-Jo Church (28 March 2004) - Church Aff Affidavit of Richard Chaykowski (26 October 2004) - Chaykowski Aff Affidavit of Hector Delanghe (16 December 2004) - Delanghe Aff Affidavit of Michael Fraser, sworn March 29, 2004 - Fraser Aff Affidavit of Judy Fudge (5 August 2004) - Fudge Aff No. 1 Reply Affidavit of Judy Fudge (7 December 2004) - Fudge Aff No. 2 Reply Affidavit of Judy Fudge (29 March 2005) - Fudge Aff No. 3 Affidavit of Clarence Haverson (26 October 2004) - Haverson Aff Affidavit of Darius ltorong (28 March 2004) - ltorong Aff Affidavit of Xin Yuan Liu (28 March 2004) - Liu Aff Affidavit of Julia McGorman (28 March 2004) - McGorman Aff

-ivAffidavit of Stanley Dean Raper (28 March 2004) - Raper Aff No. 1 Affidavit of Stanley Dean Raper (6 December 2004) - Raper Aff No. 2 Reply Affidavit of Stanley Dean Raper (4 April 2005) - Raper Aff No. 3 Affidavit of Victor Satzewich (18 March 2004) - Satzewich Aff James White, A Profile of Ontario Farms and Farm Labour - White Report Witnesses

Basok - Prof. Tanya Basok (Respondents' witness on seasonal migrant agricultural workers) Brinkman - Dr. George Brinkman (Appellant's witness, farm economics) Chaykowski - Dr. Richard Chaykowski (Appellant's witness on labour relations policy) Church - Billie-Jo Church (Applicant, former mushroom quality control employee) Delanghe - Hector Delanghe (Intervener's witness, farmer) Fraser - Michael Fraser (Applicant, Canadian Director of UFCW Canada) Fudge - Prof. Judy Fudge (Respondents' witness on history of labour relations and international labour standards) Haverson - Clarence Haverson (Appellant's witness, Ministry of Agriculture, Food and Rural Affairs) ltorong - Darius ltorong (Respondents' witness, former mushroom harvester) Liu - Xin Yuan Liu (Applicant, mushroom harvester) Mawhiney - Gary Mawhiney (Appellant's witness, Ministry of Agriculture, Food and Rural Affairs) McGorman - Julia McGorman (Applicant, mushroom quality control employee) Raper - Stanley Raper (~espondents'witness, UFCW organizer of agricultural workers and Coordinator of Migrant Agricultural Worker Support Centres) Satzewich - Victor Satzewich (Respondents' witness, history of use of unfree immigrant and migrant labour in agriculture, history of Seasonal Agricultural Workers Program) White - James White (Respondents' witness, profile of farms and farm labour)

PART I: A.

1.

OVERVIEW AND STATEMENT OF FACTS Overview of the Respondents' Position

Agricultural workers in Ontario have been trying for decades to unionize and bargain

collectively with their employers. Throughout Ontario's history, except for a 17-month period in 1994-1995, agricultural workers have been expressly denied statutory protection for the rights to unionize and to bargain collectively. They have never been able to successfully engage employers in collective bargaining without statutory support. Ontario legislation continues to deny agricultural workers protection to bargain collectively. For decades, the Ontario Labour Relations Board has ruled that there is "no industrial relations basis" for denying agricultural workers protection for this fundamental right. 2.

This appeal addresses whether denying agricultural workers statutory protection for

the right to bargain collectively violates their fundamental freedom of association and their right to equality under s. 2(d) and s. 15 of the Canadian Charter of Rights and Freedoms. 3.

The Respondents in this case are three agricultural workers - Xin Yuan Liu, Julia

McGorman and Billie-Jo Church - and Michael,.Fraser and the United Food and Commercial Workers Union Canada ("UFCW Canada") who represent agriculturalworkers in Ontario seeking the rights to unionize and bargain collectively. The Respondentssubmit that s. 3(b.l) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A and the entirety of the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 6 ("AEPA") violate s.2(d) and s.15 of the Charter, that the violations cannot be justified under s. 1, and that the impugned provisions are unconstitutional and of no force and effect. 4.

The Respondents submit that the Ontario Court of Appeal correctly ruled that the

AEPA is unconstitutional because it substantially impairs farm workers' freedom of association by providing no statutory protection for collective bargaining. The Court of Appeal correctly declared the AEPA invalid and correctly ruled that the government has an obligation under s.2(d) to provide statutory protection to ensure that farm workers can exercise the right to bargain collectively in a meaningful and effective way.

5.

Many of the principles that are being challenged by the Appellant Attorney General

of Ontario ("Ontario") and Intervener Ontario Federation of Agriculture ("OFA") in this appeal have already been clearly decided by this Honourable Court. 6.

In the 2001 appeal of Dunmore v, Ontario (Attorney General), this Court ruled that (a)

the right to unionize is an exercise of the fundamental freedom of association that is protected under s. 2(d) of the Charter;

(b)

legislation that affects the relationship between private sector farm employers and farm employees is subject to scrutiny under the Charter; and

(c)

in view of agricultural workers' marginalized position and their inability to exercise freedom of association without statutory support, the government has a positive duty to enact legislation which ensures that farm workers can exercise freedom of association in an effective and meaningful way. This Court identified a non-exclusive list of minimum protections that would be needed to make the right to unionize effective but did not address the issue of collective bargaining. Dunmore V. Attorney General (Ontario), [2001] 3 S.C. R. 1016

7.

In the 2007 appeal of Health Services and Support-Facilities Subsector Bargaining

Assn. v. British Columbia ("B.C. Health Services"), this Court went further and ruled that the right to bargain collectively is also protected as an exercise of freedom of association under s.2(d) of the Charter. Indeed, it stressed collective bargaining is "the most significant collective activity through which freedom of association is expressed in the labour context." Health Services and Support-Facilities Subsector BargainingAssn. v. British Columbia, [2007] 2 S.C.R. 391 [hereinafter "B.C. Health Services"], esp. at para. 66 8.

In both Dunmore and B.C. Health Services this Court held that Canadian labour

relations history provides the critical context for understanding what kinds of statutory protections are necessary, in Canada, to enable workers to exercise their freedom of

association in an effective and meaningful way. 9.

This appeal brings together the two streams of analysis from Dunmore and B.C.

Health Services. The Respondents submit as follows. First, the impugned laws are unconstitutionally underinclusive in failing to protect the right to bargain collectively. On the evidence in this case, it is clear that farm workers require statutory support to exercise the right to bargain collectively. The AEPA continues to prevent the exercise of this right and in fact orchestrates, encourages and sustains violations of the right. Ontario has an obligation to enact legislation to protect an effective and. meaningful right to bargain collectively for farm workers. 10.

Second, by denying agricultural workers protection for the right to bargain

collectively when that right is protected for virtually all other employees in the province, the impugned laws discriminate contrary to s. 15 by providing differential treatment on the analogous ground of the claimants' status as agricultural workers. This differential treatment imposes'.prejudicial burdens on agricultural workers that are not imposed on others and it perpetuates and reinforces farm workers' pre-existing disadvantage. 11.

Third, the government has not demonstrated that the violations of s. 2(d) and s. 15

are demonstrably justified under s. 1. The government has failed to show that the impugned laws minimally impair Charter rights and that the depth of the infringements is rationally connected to the objectives, particularly of protecting the family farm. The impugned legislation was never intended to protect collective bargaining rights for farm workers. Even though farm workers in 8 provinces and in the federal jurisdiction have the right to bargain collectively, extending these rights in Ontario was never considered as an option. Even the after-the-fact evidence presented in this case is only directed at justifying the total exclusion from collective bargaining and not addressing whether the rights could have been minimally impaired. In all the circumstances, the appeal should be allowed, and s. 3(b.l) of the LRA and the AEPA in its entirety be declared unconstitutional.

B.

12.

Statement of Facts

In Dunmore and B.C. Health Services, this Court emphasized that efforts to exercise

freedom of association and allegations that a statute impairs that fundamental freedom must be examined contextually to assess whether the statute safeguards a meaningful exercise of freedom of association. To that end, this section outlines the legal, historical and socio-economic context in which the Respondents have sought to bargain collectively. Dunmore v. Ontario, supra at para. 20-22, 35-48 B.C. Health Services, supra at para. 30, 33

13.

In summary, agricultural production in Ontario is increasingly dominated by large-

scale industrial farm operations that are similar to non-agricultural production sectors. Farm work is increasingly performed by hired labour rather than farm owners and their families. Agricultural work is done by vulnerable workers, including a large proportion of immigrant and migrant workers, who are recruited specifically because of their vulnerability in the workforce. Their vulnerability is and has historically been reinforced by their exclusion from basic labour and employment protections with the result that agricultural workers have a very limited sense of legal entitlement. Despite repeated efforts over many decades, Ontario agricultural workers have been entirely unable to bargain collectively in the absence of protective legislation. The only group of Ontario farm workers that has ever successfully unionized and engaged an employer in collective bargaining did so under bargaining legislation that was in place for 17 months in 1994-1995. That bargaining unit was decertified by statute in 1995. The Respondents have been entirely unable to bargain collectively under the AEPA which imposes no duty to bargain in good faith. 1. 14.

Agricultural Production in Ontario: The Rise of Agribusiness

Agriculture is the second largest industry in Ontario yielding cash receipts of $7.872

billion in 2001. Approximately 76,600 people in Ontario are engaged in agriculture of whom 32,100 are employees (non-family hired agricultural labour). This figure does include all seasonal workers, foreign workers, and workers supplied by labour contractors.

Brinkman Aff, AR, Vol.11, Tab 24 at 31 White Report, AR, Vol. XXXI, Tab 70 at 138, 140, also 136-137

15.

While the pastoral image of the small family farm remains evocative, agricultural

production in Ontario is increasingly done by large-scale industrial farming operations or agribusiness and that trend has only progressed in the decade since Dunmore began. Dunmore v. Ontario, supra at para. 62-63 White Report, AR, Vol. XXXI, Tab 70 at 141-144, 150, 152-155, I76 Wellington Mushroom Farm [I 9801 OLRB Rep. May 813 at para. 20-25 Superior Court of Justice Decision, AR, Vol. I, Tab 2, 11-13 at para. 23-24

16.

Agriculture in Ontario is increasingly conducted by fewer, larger farms which use

more hired employees who perform more weeks of paid labour per year. While there are fewer farms, they are larger, farm more land and produce more goods than before. In Ontario 24,013 farms report paid labour; 15,427 pay non-familv labour. Nearly 6O0I0of all farm wages are paid by just 1.9% of farms (the 1144 largest farms). Roughly 30% of the total weeks of paid farm labour is concentrated on only 241 large Ontario farms. White Report, AR, Vol. XXXI, Tab 70 at 142-143, 148-150, 152-155, 160, 168 Chaykowski Aff, AR, Vol. IV, Tab 28 at 13 Statistics Canada, Farmers Leavina the Field, AR, Vol. Ill, Tab 31 (Ex.3) at 164-166 Delanghe Aff, AR, Vol. XXXVIII, Tab 86 at 165-168 F.A.R.M.S., Quest for a Reliable Workforce, AR, Vol. XX, Tab 64 at 64 Haverson Aff, AR, Vol. V, Tab 33 at 133

17.

The highest concentration of farm workers is in large-scale industrial mushroom

production, greenhouses and hatcheries - the three segments of agriculture where Ontario workers have previously tried to unionize. The Ontario Labour Relations Board has found that the organizational structure and operations of these farming businesses are "factorylike" and "[do] not differ in any material respect from a typical manufacturing plant." Raper Aff No. 3, AR, Vol. XII, Tab 46 at 158-161 Wellington Mushroom Farm, supra at para. 6-18, 29 Cuddy Chicks Ltd., [I 9881 OLRB Rep May 468 at 469-470

18.

These large-scale agribusinesses operate in large, indoor, climate-controlled

facilities, year-round, 24 hours per day. For example, mushroom factories often employ sixty to several hundred employees working in two or three shifts. The largest mushroom factories have as many as 600 full-time year-round employees. Wellington Mushroom Farm, supra at para. 6-18, 29 Raper Aff No. 3, AR, Vol. XII, Tab 46 at 158-161; Raper Cr-ex, AR, Vol. XIII, Tab 47 at p. 33, 34, 41 -47, L. 16-6,3-21, 4-29, 25-15 Raper Aff No. 1, AR, Vol. XII, Tab 44 at 84-85 and Tab 44(Ex.4) at 101-108 Cuddy Chicks Ltd, supra at 469-470 Niagara Poultry Sewice, [A9951 OLRB Rep. Nov. 1396 at para. 5-7,18-20 Spruceleigh Farms, [ I 9721 OLRB Rep. Oct. 860 at para. 3-4, 6 White Report, AR, Vol. XXXI, Tab 70 at 147, 158, 165, 178

19.

The individual Respondents worked at

ROI- and Farms Ltd., a mushroom factory

in Kingsville, Ontario with 270-300 employees which described itself as a profitable "farming businessJ'boasting annual sales approaching $50 million. Hansard (16 April 1997), AR, Vol. IX, Tab 40 (Ex. 2) at 108-109 2. 20.

Ontario's Agricultural Work Force

The social, economic and political profile of farm workers today must be examined

in view of the historical dynamics that have structured Ontario's agricultural labour market as one that is predominated by Canadian workers from the economic margins and that is heavily dependent on a large foreign migrant work force that is legally restricted to working in agriculture. The effect of these historical dynamics is that for many decades agricultural workers in Ontario have been comprised of vulnerable workers who are employed in agriculture precisely because of their socio-economic and political vulnerability. This vulnerability has in turn facilitated their continued institutional marginalization in law. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 64-73 Satzewich Aff, AR, Vol. XXXIII, Tab 75 at 155

21.

Agricultural work is hard physical unskilled labour performed in dirty and difficult

conditions. It has low wages and long hours. Nearly 40% of the work is seasonal. It is the fourth most dangerous job in Ontario and one of the least prestigious.

Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 64 Basok Aff, AR, Vol. XXXV, Tab 79 at 89-90, 102-103 White Report, AR, Vol. XXXI, Tab 70 at 186-187

22.

As a result, for more than a century Ontario farmers have had difficulty recruiting

and retaining workers who are willing to stay in agriculture for long periods. Workers who have other options take work outside of agriculture if it is available. While their faces change through history, what has remained consistent is that farm workers come from those populations with the fewest options and with the greatest difficulty finding employment in other economic sectors. They are workers with low skills, low education, low job mobility, recent immigrants who lack English language skills, the unemployed, and students. Since the 1950s and continuing today, hired farm labour has "depended heavily upon defects in society - unemployment, underemployment, illiteracy and discrimination." This profile of vulnerability has not changed since Dunmore. A new element since then is that labour contractors are increasingly recruiting recent immigrants in urban areas and bussing them into rural areas to work for cash as undocumented workers. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 64-65,68-69,73,77and Vol. XIX, Tab 64(Ex. 7) at 194,'Vol.XX, Tab 64(Ex. 10) at 50-51 White Report, AR, Vol. XXXI, Tab 70 at 185-186 McGorman Aff and Church Aff, AR, Vol. XIV, Tabs 50 and 54 at 1,109 Satzewich Aff, AR, Vol. XXXIII, Tab 75 at 126-128, 130, 145-150 and Vol. XXXIV, Tab 75 (Ex. 23) at 146-148 Raper Aff No. 1, AR, Vol. XII, Tab 44 at 79-81, Raper Cr-ex, AR, Vol. XIII, Tab 47 at 12-15,46-47, QQ. 43-65 and QQ. 267-270 Basok Aff, AR, Vol. XXXV, Tab 79 at 89 Delanghe Aff, AR, Vol. XXXVIII, Tab 86 at 170-171 23.

The large majority of workers in factory farms are non-white immigrants who have

recently arrived in Canada. At Rol-Land Farms Ltd. where the Respondents work, 8O0I0 of workers are immigrants from Vietnam, China, Sudan, Cambodia, South and Central America, Portugal and the Middle East. Many of them speak little or no English. Raper Aff No. 1, AR, Vol. XII, Tab 44 at 79-81 Liu Aff, AR, Vol. XVI, Tab 58 at 120; Liu Cr-ex, AR, Vol. XVI, Tab 59 at p. 178-179, QQ. 243-245 Church Cr-ex, AR, Vol. XV, Tab 55 at p. 159-160,L. 6-7 Basok Aff, AR, Vol. XXXV, Tab 79 at 103

24.

Since the 1%Os, the federal and provincial governments have actively intervened

to recruit, and at times conscript, domestic labour to work in agriculture from regions of the country that consistently have high unemployment - the Maritimes, northern Ontario and Indian reserves. Since the early 1900s, these governments have also actively recruited foreign sources of labour: (a) "unfree immigrants" (including displaced persons and refugees) who in exchange for permanent residency are required to work in agriculture for a defined period of years; and (b) "unfree seasonal migrant labourers" from developing countries who have no right of permanent residence, cannot work outside agriculture, and must return to their country of origin when their work is completed. Competition between sending countries is institutionalized which undermines enforcement of worker rights. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 65-71 and AR, Vol. XVIII, Tab 64 (Ex. 3) at 160-166;and AR, Vol. XX, Tab 64 (Ex. 11) at 65-68 Satzewich Aff, AR, Vol. XXXIII, Tab 75, all, esp. at 125-136, 150-155 Basok Aff, AR, Vol. XXXV, Tab 79 at 107-115 Seasonal Agricultural Worker Program Employment Contracts (Caribbeanand Mexican),AR, Vol. XXXV, Tab 79 (Ex. 3,4) at 146-154 25.

Through these interventions, the governments have institutionalized migrant labour

as a key element of Ontario's agricultural workforce. They institutionalized a system that recruits vulnerable workers under employment structures that heighten their vulnerability. 26.

The vulnerability of agricultural workers has been embedded in law as farm workers

have historically been excluded from almost all of the statutory rights and benefits provided to the vast majority of other workers in Ontario. Where they are covered, this has only come many decades after other workers won the same rights. For example, farm workers only gained protection under the Occupational Health and Safety Act in 2006 after UFCW Canada filed a constitutional challenge to their exclusion. Agricultural workers generally remain excluded from employment standards protections for minimum wages, overtime, vacation pay, public holiday pay, maximum hours worked in a day, maximum hours worked in a week, minimum prescribed rest periods between shifts, minimum rest periods in a week or two-week period, and minimum rest periods for meals. None of the legislation which applies to farm workers gives them protection to bargain collectively.

Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 73-76 and AR, Vol. XX, Tab 64 (Ex. 12) at 90-91 Raper Aff No. 2, AR, Vol. XII, Tab 45 at 122-134 and Tab 45 (Ex. A) at 129-136 Ontario Regulation 414/05 Ontario Regulation 285101 made under the Employment StandardsAct, 2000, sections 2(2), 4(3), 8, 9, 26, 27 which exclude farm workers from protections in Employment Standards Act, 2000, Parts VII, VIII, IX, X, XI

27.

The impact of their exclusion from basic labour standards is that agricultural workers

work long hours in difficult conditions: 40% regularly work more than 50 hours per week. During harvest, it is not unusual for migrant workers to work up to 14-16 hours per day, six days per week plus a half-day on Sundays. Agricultural workers also receive low wages, suffer a high rate of work-related injuries and illnesses, and face racial discrimination. Fudge Aff No. 1, AR,Vol. XVII, Tab 64 at 75 and AR, Vol. XXIII, Tab 64 (Ex. 44) at 22-23 Liu Aff, AR, Vol. XVI, Tab 58, McGorman Aff, AR, Vol. XIV, Tab 50, Church Aff, AR, Vol. XIV, Tab 54 and ltorong Aff, AR, Vol. XVII, Tab 63 Basok Aff, AR, Vol. XXXV, Tab 79 at 101 Verduzco and Lozano Report, AR, Vol. VI, Tab 36 at 87-88 Preibisch Report, AR, Vol. XXV, Tab 65 (Ex. 9) at 122-124

28.

It is from their own experiences of vulnerability at work and poor working conditions

that farm workers approached UFCW Canada to unionize and bargain collectively. Liu Aff, AR, Vol. XVI, Tab 58 at 119-122 ltorong Aff, AR, Vol. XVII, Tab 63 at 46-48 McGorman Aff, AR, Vol. XIV, Tab 50 at 1-3 Church Aff, AR, Voi. XIV, Tab 54 at 109-110 Raper Aff No. 2, AR, Vol. XII, Tab 45 at 120-122

3.

is tory of Agricultural Workers' Exclusion From Labour Laws a.

29.

Overview

The history of labour relations in Canada shows that the absence of legislative

protection for the right to join a union and bargain collectively virtually guarantees that workers will not be able to exercise those rights. This has been particularly true for agricultural workers who, throughout Ontario's history, have not been able to bargain collectively without legislative protection and support.

Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 92-95, 105-106, 115 Dunmore v. Ontario, supra at para. 35-36, 39-48

30.

In Ontario the rights to unionize and bargain collectively have been guaranteed for

workers generally since the 1943 Collective Bargaining Act. The rights remain guaranteed for virtually all Ontario workers today under the Labour Relations Act, 1995 ("LRA). Workers who are covered under sector-specific labour relations statutes have rights to bargain collectively either on terms identical to or substantially similar to the LRA. By statute, agricultural workers in Ontario have been and continue to be explicitly denied the right40 unionize and bargain collectively. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 92-98 Fraser Aff, AR, Vol. IX, Tab 40 at 88 See Table of Concordance between the LRA and Ontario's sectorspecific bargaining statutes, Part VII, Tab H to this factum. LRA, s. 3(b.l)

31.

The only other Ontario workers who are denied the rights to unionize and to bargain

collectively are workers whose roles require that they not be placed in an apparent conflict of interest (i.e. judges, labour mediators and labour conciliators, and certain supervisory employees); domestic servants; and employees in trapping, hunting, and horticulture. LRA, s. 3 Fudge Aff No. 2, AR, Vol. XXIV, Tab 65 at 20-21

32.

Ontario's legislation affecting agriculturalworkers is out of step with most of Canada.

In every other province except for Alberta, agricultural workers have the right to unionize and bargain collectively under the general labour relations statute for the province. These rights were extended to agricultural employees "in recognition of the economic fact that they often work for a large agribusiness rather than on a small family farm." See list of statutes set out at Part Vll, Tab I to this factum. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 104-106 Paul Weiler, Reconcilable Differences, AR, Vol. XXII, Tab 64 (Ex. 32) at 88

33.

Despite differences in the details of labour legislation across jurisdictions in Canada,

all jurisdictions in Canada except Ontario and Alberta provide agricultural workers with the

'

11

following rights which are also available to workers in general: a mechanism to select on a majority basis a trade union free of employer interference with exclusive bargaining rights to represent them; prohibitionson employer unfair labour practices that might interfere with their right to form, join, and participate in a union of their choice for the purpose of collective bargaining; a legally enforceable duty on the employer to recognize and bargain in good faith with a union that is independent of the employer; a right to government assistance via mediation and conciliation services to resolve disputes that arise in the negotiation of a collective agreement; a mechanism - typically economic sanctions such as strikes and lockouts for resolving negotiation disputes that reach impasse; legally enforceable collective agreements; a right to grievance arbitration to resolve collective agreement disputes; institutional and financial security for the trade union the workers have selected to represent them; and access to a regulatory and adjudicative tribunal that has experience with, and an understanding of, labour relations. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 104-106 cf. LRA, S.7-19, 17,18-21,27,35,38,40,43,45,47,48,56,70,72,73, 76, 79, 110-111

34.

The fact that agricultural workers in most Canadian provinces have the rights to

unionize and bargain collectively has not prevented those provinces from developing and sustaining agricultural production. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 104-105, 121-122

b.

35.

The Agricultural Labour Relations Act: Farm Workers' Short-Lived Right to Bargain Collectively

For a brief period, Ontario's agricultural workers were granted rights in line with

agricultural workers in the rest of Canada. In 1994, the Ontario government enacted the

Agricultural Labour Relations Act, S.O. 1994, c. 6, ("A LRA") which gave agricultural workers the rights to unionize and bargain collectively under a comprehensive statute administered and enforced by the Ontario Labour Relations Board.

The ALRA

incorporated much of the Labour Relations Act, including exclusive rights of representation for unions with majority support, protection from unfair labour practices, the duty to bargain in good faith and the right to grievance arbitration. It included special provisions to address the situation of family members working on farms. Instead of strikes and lockouts, the ALRA substituted mediation and final offer selection to resolve bargaining disputes. Agricultural Labour Relations Act, S.O. 1 994, c. 6

36.

The ALRA was the product of a broad 2-year consultation - conducted by the Task

Force on Agricultural Labour Relations composed of employer, government and labour representatives - which led to a tripartite consensus that unionization and collective bargaining could work in the agricultural sector. Fudge Aff No. 3, AR, Vol. XXVI, Tab 66 at 74-77, .. Raper Aff No. 2, AR, Vol. XII, Tab 45 at 124-125 Fraser Aff, AR, Vol. IX, Tab 40 at 88 Task Force on Agricultural Labour Relations BackgroundStudies, Task Force Report (June 1992), Task Force Report (November 1992), AR, Vol. XXIV, Tab 65 (Ex. 5) at 84-146, Tab 65 (Ex. 6) at 151-196, esp. at 153 and, AR, Vol. XXV, Tab 65 (Ex. 7) at 2-29, esp. at 3

37.

The ALRA was in effect from June 1994 to November 1995. During this time one

bargaining unit of agricultural workers was certified at a mushroom factory. UFCW Canada and the employer commenced bargaining, reached agreement on various issues but had not yet concluded a collective agreement when the legislation was repealed. Fraser Aff, AR, Vol. IX, Tab 40 at 88-89 U-Ans Fraser, AR, Vol. XI, Tab 42(1) at 125

38.

After a provincial election, in November 1995 the ALRA was repealed. A new

Labour Relations Act, 1995was enacted that again expressly denied agricultural workers the right to unionize and bargain collectively. The repeal of the ALRA also terminated the

13

Union's representation rights and terminated the two other certification applications (at another mushroom factory and poultry operation) that were in progress. Fraser Aff, AR, Vol. IX, Tab 40 at 89 39.

The repeal of the ALRA was not preceded by any consultation or studies on the

operation of the ALRA. Fudge Aff No. 2, AR, Vol. XXIV, Tab 65 at 22 Chaykowski Cr-ex,AR, Vol. IV, Tab 30, p. 145-146,QQ. 353-355

c.

40.

The Dunmore Decision

The Union challenged the repeal of the ALRA and exclusion from the LRA, 1995 in

Dunmore, arguing that they violated s. 2(d) by denying agricultural workers' right to

unionize. The issue of constitutional protection for collective bargaining was not raised in Dunmore. The Court found that s. 2(d) was violated and not justified under s.1. It held that

under the Charter the government had a positive duty to enact legislation to provide that protection which is necessary to ensure farm workers can meaningfully exercise freedom of association. The Court suspended its declaration of unconstitutionalityfor 18 months to give the government time to draft appropriate legislation. Fraser Aff, AR, Vol. IX, Tab 40 at 89-90 Dunmore v. Ontario, supra at para. 66-67 41.

In response to the Dunmore ruling, the government enacted the Agricultural

Employees Protection Act, 2002 ("AEPA) which came into force on 17 June 2003.

42.

Before enacting the AEPA, no government studies, papers or reports were prepared

that refuted the recommendations of the Task Force on Agricultural Labour Relations. Chaykowski Cr-ex, AR, Vol. IV, Tab 30 at 147, Q. 360 43.

In developing its response to Dunmore, the government's consultation documents

reveal that including farm workers within the Labour Relations Act or granting them rights

to bargain collectively were never presented as an option. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 107-108; OMAF, "Rights of Association for Agricultural Workers: A Response to Dunmore v. Ontario", AR, Vol. XXIII, Tab 64 (Ex. 46) at 28, 23, 26; Hansard (7 October 2002), AR, Vol. XXIII, Tab 64 (Ex. 47) at 57 and 60

4. 44.

The Agricultural Employees Protection Act

The AEPA has two key aspects. First, it excludes agricultural workers from the

Labour Relations Act. Section 3(b.l) of the Labour Relations Act, 1995 provides that the Act "does not apply ... to an employee within the meaning of the Agricultural Employees Protection Act, 2002." This is reinforced by s. 18 of the AEPA which states that "[tlhe Labour Relations Act, 1995 does not apply to employees or employers in agriculture." LRA, s. 3(b.l) AEPA, s. 18,20 45.

Second, the AEPA establishes a separate statutory regime that applies exclusively

to a broadly defined group of employees "employed in agriculture". AEPA, s. 2(1) 46.

The AEPA states that agricultural employees have these general rights: (a) the right

to form or join an "employees' association"; (b) the right to participate in the lawful activities of an employees' association; (c) the right to assemble; (d) the right to make representations to their employers, through an employees' association, respecting the terms and conditions of their employment; and (e) the right to protection against interference, coercion and discrimination in the exercise of their rights. AEPA, s. 1(2), s. 2 47.

The AEPA grants agricultural workers the right to form or join an "employees'

association" which is defined as "an association of employees [employed in agriculture] formed for the purpose of acting in concert". The AEPA provides that no employer "shall

interfere with the formation, selection or administration of an employeesJassociation, the representation of employees by an employeesJassociation or the lawful activities of an employees' association". It prohibits employers from interfering, intimidating, coercing or discriminating against agricultural workers simply because they have formed, joined or participated in the lawful activities of an employee association. AEPA, S. 1(2), 8-10 48.

The AEPA provides that "the employer shall give an employeesJ association a

reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer." Whether an employees' association has had a "reasonable opportunity" to make representations is determined with reference to the timing of representations relative to planting, harvesting or other "concerns that may arise in running an agricultural operationJJand the "frequency and repetitiveness of the representationsJ'. Where an employee association makes representations, the employer only has an obligation to "listen to the representations if made orally, or read them if made in writing." AEPA, s. 5 49.

In introducing the legislation, then-Minister of Agriculture Helen Johns made clear

that these rights do not constitute a right to collective bargaining: "I need to make one thing very clear here. While an agricultural employee may join an association that is a union, the ~roposedlegislation does not extend collective baraaining to aaricultural workers." Fudge Aff No. I,AR, Vol. XVII, Tab 64 at 115; Hansard (7 October 2002), AR, Vol. XXIII, Tab 64 (Ex. 47) at 60 [emphasis added] 50.

While the AEPA sets out a bare right to make representations, (a)

the AEPA does not impose any obligation on an employer to bargain in good faith - or to bargain at all - with an employees' association. There is no obligation to attempt to reach any agreement and no right to have a legally

binding collective agreement. There is no mechanism for resolving bargaining disputes about the terms and conditions of employment. There is no right to dispute resolution to enforce any terms and conditions of work. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 1 15-117

AEPA, s. 5(6) cf. LRA, S. 17, 18-21, 27, 33, 35, 40,43, 48, 56 The AEPA does not guarantee a right to make representations at regular or predictable intervals. An employees' association need only be given a "reasonable opportunity" based on factors that stress employer convenience. AEPA, s. 5(1), (3) cf. LRA, s. 17, 58, 59 The AEPA limits an employees' association to making representations on behalf of "one or more of its members".

There is no right to make

representations which reflect majority positions and no protection for employees' identity as members of the association. AEPA, s. 5(1) cf. LRA, s. i'(l 3), 45, 119 The AEPA does not give an employees' association exclusive rights of representation but in fact anticipates that multiple employee associations may exist at a single workplace. cf. LRA, s. 45 $FudgeAff No. 1, AR, Vol. XVII, Tab 64 at 93-95, 112-114; Ministry of Agriculture and Food Fact Sheet (June 2003), AR, Vol. XXIII, Tab 64 (Ex. 49) at 79

51.

The rights in the AEPA are enforced by the Agriculture, Food and Rural Affairs

Appeal Tribunal ("Agriculture Tribunal") created under the Ministry ofAgriculture, Foodand Rural Affairs Act. Complaints under the AEPA can only be dealt with by Agriculture

Tribunal members on a special roster whose appointment specifically states that they are

entitled to hear matters under the AEPA. This is done "to recognize that the Agriculture Tribunal's jurisdiction under the Agricultural Employees Protection Act, 2002 differs in nature from the rest of the Agriculture Tribunal's jurisdiction, such that a special roster for the purposes of proceedings under that Act is appropriate." The Agriculture Tribunal's jurisdiction typically addresses issues relating to crop insurance, product marketing commissions and boards, tax assessment on farm land, and environmental negotiation. Ministry of Agriculture, Food and RuralAffairs Act, esp at s. 14(1.2)-(1.4) 52.

If the Agriculture Tribunal finds a breach of the AEPA, it has remedial powers to

determine what, if anything, a person or entity shall do or refrain from doing with respect to the contravention, which includes the power to order an employer to reinstate, hire or compensate a person who has been discriminated against for participating in an employees' association. AEPA, s. 11(5), (6) 53.

The AEPA is not administered by a tribunal that has experience and expertise in

labour relations. Unlike the Ontario Labour Relations Board which is a tripartite board with equal management and labour representation, there is no requirement that the Agriculture Tribunal members who hear complaints under the AEPA have any expertise in labour relations. The Agriculture Tribunal does not have a trained staff of labour relations officers who can inquire into a complaint, attempt to settle it and report to the Tribunal. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 116-117 cf. LRA, S. 110, S . 96(1)-(3) cf. I.L. W.U. Local 514 v. Prince Rupert Grain Ltd., [I 9961 2 S.C.R. 432 at para. 21 -26 re expertise of labour relations boards

5. 54.

Agricultural Workers' Current Attempts to Unionize

In 2002, after this Court's ruling Dunmore, the Respondent Xin Yuan Liu and other

workers, approached UFCW Canada to seek union representation at Rol-Land Farms Ltd. Raper Aff No. 1, AR, Vol. XII, Tab 44 at 81

Liu Aff, AR, Vol. XVI, Tab 58 at 120-122 ltorong.Aff,AR, Vol. XVII, Tab 63 at 47-48

55.

By the spring of 2003,70°/~of the 270-300 work

and Farms signed union

cards and became members of the Union. When the Union clearly had majority support of the workers, UFCW Canada approached Rol-Land Farms Ltd. asking it to voluntarily recognize the Union as the employees' representative. The employer gave no response. Fraser Aff, AR, Vol. IX, Tab 40 at 92-93 and Tab 40 (Ex. 3) at 116 Raper Aff No. 1, AR, Vol. XII, Tab 44 at 81 56.

In June 2003 the Union filed an application for certification with the Ontario Labour

Relations Board. In the Board-supervised certification vote, despite intimidation tactics by the employer, the workers overwhelmingly voted 132-45 in favour of having UFCW Canada as their union and collective bargaining agent. Resolution of that certification application is on hold pending this appeal. Raper Aff No. 1, AR, Vol. XII, Tab 44 at 81-83 Court of Appeal Decision, AR;Vol. I,.Tab4 at 49, para. 74 57.

After the votes were counted, UFCW Canada wrote to the employer requesting

meeting dates to commence negotiations to settle on a mutually agreeable contract for Rol-Land Farms workers. The Union received no response to the letter. Fraser Aff, AR, Vol. IX, Tab 40 at 94 and Tab 40 (Ex. 4) at 118 58.

Even though the Respondents and the majority of workers at Rol-Land Farms Ltd.

democratically chose UFCW Canada as their exclusive representative, Rol-Land Farms Ltd, continues more than six years later to refuse to recognize the Union. Instead, at a meeting convened at the workplace, the owner of Rol-Land Farms told workers that the Union would never be allowed in and that he intended to fight the Union. Raper Aff No. 1, AR, Vol. XII, Tab 44 at 83-84 Liu Aff, AR, Vol. XVI, Tab 58 at 124

59.

Instead of recognizing the workers' chosen representative, Rol-Land Farms Ltd.

appointed an employee to establish a separate "employees' association"that would appear as an alternative to the Union. The "employees' association'' which is perceived as "an extension of management" only ever had 7 or 8 members, 5 of whom later quit. Nevertheless, this is the group the employer recognizes as the "employees' association". Raper Aff No. 1, AR, Vol. XII, Tab 44 at 83 ltorong Aff, AR, Vol. XVII, Tab 63 at 49 Liu Aff, AR, Vol. XVI, Tab 58 at 124-125 Church Aff, AR, Vol. XIV, Tab 54 at 113 Fraser Aff, AR, Vol. IX, Tab 40 at 94,and Tab 40 (Ex. 5) at 120 McGorman Cr-ex, AR, Vol. XIV, Tab 51 at 80, QQ. 706-708 60.

This experience of attempting to bargain under the AEPA is echoed at Platinum

Produce, an industrial hot house greenhouse operation in Chatham, Ontario where workers have also sought certification to have UFCW Canada represent them under the Labour Relations Act. That application is also on hold pending this appeal. Raper Aff No. 3, AR, Vol. XII, Tab 46 at 163-164

61.

UFCW Canada approached Platinum Produce asking it to voluntarily recognize the

Union as the representative of the workers and to sign a collective agreement. While the employer expressed doubt that the Union could be an employees' association under the AEPA, it gave the Union an opportunity to make representations. The meeting, held in July 2004, lasted approximately 15 minutes. The employer's position was that they were not obligated to bargain with the Union and the meeting was not to be considered collective bargaining towards a collective agreement. In about August 2004, the Union presented the employer's counsel with a draft collective agreement setting out proposed terms. That meeting lasted approximately 5 minutes. Since then, the employer has not responded to the proposals or to other proposed meeting dates. There have been no further meetings or communication about terms and conditions of work. Raper Aff No. 3, AR, Vol. XII, Tab 46 at 164

62.

The employees' and Union's experience with the practical operation of the AEPA

is that it is ineffectual in establishing any real or effective collective bargaining between agricultural employees and employers. First, there is no requirement that an employee association actually be representative of employees or be democratically chosen. Employers can and do use the ability to have multiple associations as an additional way to control employees in the workplace. Second, the AEPA does not require employers to do anything other than passively listen to oral representations or read written representations. There is no requirement that employers actually engage in meaningful and constructive discussions or take any actions to respond to employee representations. If employers fail to take any action to respond to representations, there are no consequences under the AEPA. The Tribunal has no jurisdiction to require employers to engage in good faith with and respond to employee representations. From the workers' perspective the AEPA gives the illusion of representation without ensuring that either the representation or actions to respond to employee representations are genuine. The AEPA provides no protection for the right to bargain collectively. Raper Aff No. 3, AR, Vol. XII, Tab 46 at 164-165

PART II: 63.

RESPONDENTS' POSITION ON THE ISSUES

The Respondents submit that s. 3(b.l) of the Labour Relations Act, 1995 and the

entirety of the Agricultural Employees Protection Act, 2002 violate s.2(d) and s. 15 of the Charter, that the violations cannot be justified under s. 1 and that the impugned provisions

should be declared of no force and effect. They submit that Constitutional Questions 1, 3, 5, and 7 should be answered in the affirmative and that Constitutional Questions 2, 4, 6 , and 8 should be answered in the negative. They respectfully request that the appeal be

allowed with costs.

PART Ill: A.

LEGAL ANALYSIS Section 2(d): The Freedom of Association 1.

64.

Overview of the Respondents' Position

The Respondents submit that the AEPA and exclusion from the LRA violate s. 2(d)

by failing to provide the legal protection needed to safeguard farm workers' right to bargain collectively. The impugned statutes are underinclusive in a way that orchestrates, encourages and sustains the violation of farm workers' freedom of association. 65.

The Respondents recognizethat s. 2(d) does not provide a constitutional guarantee

to a specific legislative scheme or a particular model of labour relations. Under s. 2(d), the Respondents do not seek to constitutionalize the Labour Relations Act, 1995. From the outset they have made clear that they are not seeking the right to strike and that, in the agricultural context, bargaining disputes can be settled by some form of binding mediation or arbitration as was recommended by the Task Force on Agricultural Labour Relations and adopted in the short-lived Agricultural Labour Relations Act. Dunmore v. Ontario, supra at para. 24-26 B.C. Health Services, supra at para. 19, 91 Fraser Aff, AR, Vol. IX, Tab 40 at 91 Task Force on Agricultural Labour Relations, First Report (June l992), AR, Vol. XXIV, Tab 65 (Ex. 6) at 156,163-168, and Task Force, Second Report (November 1992),AR, Vol. XXV, Tab 65 (Ex. 7 ) at 11-16 Agricultural Labour Relations Act, s. 1 0-22

66.

The Respondents seek to protect the fundamental freedom of association and

argue that having regard to labour relations statutes informs the analysis in important ways: (a)

the uniformity of statutory protections for unionization and collective bargaining across all Canadian jurisdictions is striking and provides an important context in which to assess the nature of legal support that is needed to ensure that the fundamental freedom can be effectively exercised;

(b)

Canadian labour relations history, experience and rationales for adopting specific legal protections to safeguard against employers' subversion of freedom of association likewise provide important context for assessing if the

impugned laws genuinely protect farm workers' freedom of association; and (c)

examining the AEPA in the context of farm workers' particular history of legal disentitlement and in the context of the statutory support afforded to other workers is important for assessing the didactic effect of the AEPA on this group of marginalized workers.

To draw on this labour relations history does not constitutionalize the LRA model. Rather, it recognizes the reality of what protections are needed to make the fundamental freedom of association accessible in practice in the Canadian context. Dunmore v. Ontario, supra at para. 20-22, 35, 39-42, 44-48 B.C. Health Services, supra at para. 99, 41 -68, 35

2. 67.

Framework for Legal Analysis on Section 2(d)

To determine if freedom of association has been violated, one inquires whether the

state has precluded activity because of its associational nature thereby discouraging the collective pursuit of common goals. A claimant must establish that the activity for which they seek protection falls within the activities protected by s. 2(d) of the Chartel; and that the impugned legislation has, either in purpose or effect, interfered with these activities. Dunmore v. Ontario, supra at para. 13, 16

68.

In certain situations, the state will have a duty to enact legislation to ensure the

meaningful exercise of freedom of association. This duty will arise where the state has entered a particular field of regulation - i.e. labour relations - but has enacted legislation that is underinclusive. Exclusion from a protective regime can amount to an affirmative interference with freedom of association because by the selective exclusion of a particular group, the "government is creating conditions which in effect substantially interfere with the exercise of a constitutional right." Dunmore v. Ontario, supra at para. 22

69.

Underinclusive legislation will violate the freedom of association where:

the claim for underinclusion is grounded in a fundamental Charter freedom rather than access to a particular statutory regime; the absence of government intervention through protective legislation may in effect "substantially impede" the enjoyment of fundamental freedoms; and the underinclusive state action "substantially orchestrates, encourages or sustains the violation of fundamental freedoms." Dunmore v. Ontario, supra at para. 24-26, 28-29, 69 Baier v. Alberta, [2007] 2 S.C.R. 673 at para. 27, 30

3.

Collective Bargaining is Protected Under Section 2(d) a.

70.

Interpretive Principles on the Scope of s. 2(d)

The scope of s. 2(d) must be interpreted using a broad, generous and purposive

approach which aims to protect the full range of associational activity contemplated by the

Charter and to honour Canada's obligations under international human rights law. Dunmore v. Ontario, supra at para. 13 Reference re Public Service Employee Relations Act (Alberta), [I 9871 1 S.C.R. 313 at 393-394 per Mclntyre J.; at 334-335, 348-371, per Dickson C.J.C. [hereinafter "Alberta Labour Reference"] B.C. Health Services, supra at para. 30, 33-34, 38-86

71.

This Court has already ruled that the right to bargain collectively is an exercise of

freedom of association that falls within the scope of s. 2(d)'s protection. Collective bargaining is an exercise of freedom of association that is consistent with the language and purpose of s. 2(d), is consistent with the purposes of the Charter as a whole, and is supportive of the values of human dignity, equality, liberty, respect for the autonomy of the person and enhancement of democracy which underlie the Charter as a whole. Charter protection for collective bargaining is consistent with Canada's obligations under international human rights law. Finally, collective bargaining is a fundamental freedom that predates the Charter and any statutory regimes and is in fact "the most significant activity through which freedom of association is expressed in the labour context."

B.C. Health Services, supra at para. 19-20, 39-41, 64-67, 69-79, 80-86, 87 Dunmore v. Ontario, supra at para. 16-17, 26-29, 37-41 Fudge Aff No. 1 , AR, Vol. XVII, Tab 64 at 98-103, 123-128

72.

Contrary to the OFA's suggestions, the scope of s. 2(d) protection for collective

bargaining by farm workers is not restricted based on notions of judicial deference on questions of labour relations, images of the family farm, features of agricultural production or arguments about potential costs. It is fundamental to Charteranalysis that the scope of Charterrights is defined broadly and any limitation on such rights is considered only under s. 1 of the Charter. The OFA incorrectly seeks to bring into the s. 2(d) analysis arguments to justify restricting s. 2(d) rights. Those arguments properly belong only under s. 1. The analytical distinction between s. 2(d) and s. 1 is essential to ensure that claimants are given the full benefit of the Charter's protection, that substantive Charter rights are not truncated, and that those seeking to uphold a violation properly bear the onus to justify that infringement. Accordingly, farm workers are entitled to the broad protection for collective bargaining that was recognized in B.C. Health Services. Any argument to restrict this substantive right must be addressed only under s. 1. Ford v, Quebec (Attorney General), [I 9881 2 S.C.R. 712 at 765-766 Andrews v. Law Society of British Columbia, [I 9891 1 S.C.R. 143 at 177-178 R. v. Zundel, [I 9921 2 S.C.R. 731 at 758, para. 36-37 R. v. Turpin, [I 9891 1 S.C.R. 1296 at 1328

73.

Contrary to Ontario and the OFA's suggestions, the scope of s. 2(d) protection for

farm workers is not limited to exercising the right to organize that was outlined in Dunmore and their remedy for a s. 2(d) breach is not limited to the remedies ordered in Dunmore. Dunmore did not address the right to bargain collectively. Moreover, the law on s. 2(d) changed with B.C. Health Services to expressly protect collective bargaining under s. 2(d). Again, farm workers are entitled to the full scope of this Charter protection. Dunmore v. Ontario, supra at para. 42

74.

Finally, contrary to Ontario and the OFA's suggestions, s. 2(d) does not provide

reduced or 'more limited' protection for collective bargaining in a case involving under-

inclusive legislation. Ontario and the OFA's proposal that the scope of s. 2(d) rights differs based on a supposed "positive rights"/"negative rights" paradigm is flawed. This approach is a triumph of form over substance that leaves the broad purpose of the Charterunfulfilled. This Court has repeatedly rejected analyses that place form over substance. See, for example: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [I9991 3 S.C.R. 3 at para. 28 [hereinafter "Meiorin"] Vriend v. Alberta, [ I 9981 1 S.C.R. 493 at para. 61

75.

Describing a Charter claim as 'positive' or 'negative' simply describes the form of

government interference. A s. 2(d) violation can occur when a government law interferes by directly eliminating or stopping an existing exercise of s. 2(d) rights (i.e. B.C. Health Services). A s. 2(d) violation can equally occur when a government law interferes by creating conditions that from the outset prevent the exercise of s. 2(d) rights (i.e. Dunmore). This Court has already ruled that drawing distinctions between negative freedoms and positive rights must not be "dogmatic" because the distinctions "are not always clearly made, nor are they always helpful." As Chief Justice Dickson stated in the Alberta Labour Reference, "This conceptual approach to the nature of 'freedoms' may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms." Haig V. Canada, [ I 9931 2 S.C.R. 995 at 1038-1039 Alberta Labour Reference, supra at 361 per Dickson C.J.C. [in dissent]

76.

In an analogous situation in the human rights context, this Court unanimously

rejected the notion that there was legal significance to whether an interference with rights occurred directly or indirectly. The Court called this attempt to classify the form of interference "artificial", "malleable", "chimerical", "unrealistic" and a matter of form over substance. The Court ruled that the effect of an interference with rights does not change based on how it is expressed and that the scope of protection for substantive rights is the same regardless of how the interference is brought about. Meiorin, supra at para. 27-31

77.

This Court should once more, as it did in Dunmore, reject the positive rightslnegative

rights framework under the Charter. This analysis improperly takes the focus off substantive rights. The form of interference does not alter the substance of Charterrights. It does not alter the scope of collective activity protected under s. 2(d). While the method of provinq substantial interference with a Charter right and the appropriate remedy may vary based on whether government interference arises directly or through underinclusive laws, the scope and standard of Charter protection does not vary. Accordingly, farm workers are again entitled to full protection for the procedural right to bargain collectively that was recognized in B.C. Health Services. Dunmore v. Ontario, supra at para. 19-20,22, 26, 28-29, 34, 42

b. 78.

Scope of Charter Protection for Collective Bargaining

In B.C. Health Services, this Court ruled that "s. 2(d) should be understood as

protecting the right of employees to associate for the purposes of advancing workplace goals through a process of collective bargaining." 9.C. Health Services, supra at para. 87; also para. 19

79.

This s. 2(d) protection "does not cover all aspects of 'collective bargaining' as that

is understood in the statutory labour regimes that are in place across the country." It does not guarantee access to any particular statutory regime. It does not protect the particular objectives that employees may collectively seek through bargaining. B.C. Health Services, supra at para. 19, 89, 91

80.

What s. 2(d) does protect is "the right of employees to associate in a process of

collective action to achieve workplace goals". It guarantees the txocess through which collective goals are pursued. Section 2(d) protects a "procedural right to collective bargaining"which is described broadly as "the right of employees to join together in a union to negotiate with employers on workplaces issues or terms of employment". 5.C. Health Services, supra at para. 19,41,89

81.

Legislation will violate s. 2(d) where it "substantially interferes" with the activity of

collective bargaining in that the intent or effect of the law "seriously undercut[s] or undermine[s] the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer". B.C. Health Sewices, supra at para. 90, 92

82.

Very importantly, this Court ruled that "the fundamental precept of collective

bargaining" is the duty to consult and negotiate in good faith. The Court emphasized that s. 2(d) requires that legislation respect and protect this duty to bargain in good faith: It follows that the state must not substantially interfere with the ability of a union to exert meaninuful influence over working conditions throuuh a process of collective baraaininq conducted in accordance with the dutv to baraain in aood faith. Thus the employees' right to collective bargaining imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation. B.C. Health Services, supra at para. 90, 97 [emphasis added]

83.

To find that the right to collective bargaining under s. 2(d) has been violated, two

inquiries must be made. The inquiry "in every case is contextual and fact-specific": (a)

The first inquiry looks at whether legislation affects a matter that is important to the process of collective bargaining - whether interference with a particular matter affects the capacity of union members to come together and pursue collective goals in concert. The more important the matter affected, the more likely there will be substantial'interference with the s. 2(d) right.

(b)

The second inquiry looks at the manner in which the legislative measure impacts on the collective right to good faith negotiations and consultation: "does the legislative measure ... in issue respect the fundamental precept of collective bargaining - the duty to consult and negotiate in good faith?" B.C. Health Services, supra at para. 92-97, 112

84.

The Court stressed that "the duty to negotiate in good faith ...lies at the heart of

collective bargaining". Consideration of that duty sheds light on what constitutes improper interference with collective bargaining. Adopting the analysis developed under ILO instruments, the Court described what constitutes the process of bargaining in good faith: The principle of good faith in collective bargaining implies recognizing representative organizations, endeavouring to reach an agreement, engaging in genuine and constructive negotiations, avoiding unjustified delays in negotiation and mutually respecting the commitments entered into, taking into account the results of negotiations in good faith. B.C. Health Services, supra at para. 98

85.

Relying on the uniformity of process that has been protected under Canadian labour

legislation, the Court elaborated that a process of collective bargaining that is conducted in good faith requires that (a) the parties have an "obligation to actually meet and to commit time to the process"; (b) the parties have "a duty to engage in meaningful dialogue and they must be willing to exchange and explain their positions. They must make a reasonable effort to arrive at an acceptable contract"; and (c) "the riuht to collective baraainin~cannot be reduced to a mere riaht to make representations".

B.C.Health Services, supra at para. 99-107, 114 [emphasis added] c. 86.

Importance of Canadian Labour Relations History

In both Dunmoreand B.C. Health Services, this Court has recognizedthat Canadian

labour relations history is of bedrock importance to understanding the nature and scope of the collective activity protected under s. 2(d) and the kinds of statutory protections which are necessary to make the fundamental freedom of association effective in practice. Dunmore v. Ontario, supra at para. 20-22, 35, 39-42?44-48 B.C. Health Services, supra at para. 25, 30, 33, 40-67, 99-107

87.

Even though freedom of association is a fundamental constitutional freedom, this

Court has recognized that, because of the power imbalance between individual employees

and employers, freedom of association is particularly difficult for workers to exercise without statutory support. It is "as difficult to exercise as it is fundamental". Failure to provide statutory support, particularly in the private sector, forecloses the effective exercise of freedom of association. This Court recognized that "the history of labour relations in Canada illustratesthe profound connection between legislative protection and the freedom to organize".

Workers' ability to effectively exercise freedom of association is so

intertwined with and dependent on statutory support that the capacity to exercise the freedom is in very large measure commensurate with the statutory protection. Dunmore V. Ontario, supra at para. 20-22, 35-38,40-48 B.C. Health Setvices,'supra at para. 40-63, 35, 90, 92 88.

Despite this profound connection between statutory support and effective exercise

of freedom of association, Canadian labour statutes do not create the rights to bargain collectively. Rather, the statutory rights derive from the fundamental freedom and are reflective of the kinds of support that the Canadian experience has shown are needed to make the fundamental freedom effective for individuals. This relationship between the freedom and statutes is confirmed in the 1968 Woods Task Force Report which remains the most authoritative statement of principles underlying Canadian labour law and policy: Freedom to associate and to act collectivelv are basic to the nature of Canadian societv and are root freedoms of the existinu collective baraainina svstem. Together they constitute freedom of trade union activity: to organize employees, to join with the employer in negotiating a collective agreement, and to invoke economic sanctions, including taking a case public in the event of an impasse. Collective bargaining legislation establishes rights and imposes duties derived from these fundamental freedoms, just as legislation in other fields protects and controls corporate action." Fudge Aff No. 1, Vol. XVII, Tab 64 at 97; Task Force on Labour Relations (1968), AR, Vol. XXII, Tab 64 (Ex. 33) at 92 [emphasis added] 5.C. Health Senhces, supra at para. 25

89.

Accordingly, the Court of Appeal was correct in analysing and relying on Canadian

labour relations history and the scope of statutory protection for collective bargaining to

inform what minimum statutory supports are needed to provide effective protectionfor farm workers to exercise their procedural right to bargain collectively. 90.

Analysis of labour relations models adopted in other countries does not assist in

resolving the question of what kinds of statutory supports are needed to protect effective rights to bargain collectively in Canada. The structure that any country creates to instantiate freedom of association is a single interdependent package which is a product of specific social, economic, political and religious factors and choices in that country's history. It is not possible to transplant isolated elements or features from another country's domestic labour relations model into the Canadian context. Attempting to do so does a real disservice to understanding the significance of any particular feature in the complex history and balance of the other country's instantiation of freedom of association and a disservice to understanding Canada's own labour relations history and experience. The Court of Appeal decision, written by the Chief Justice of Ontario who has deep labour relations experience and expertise, correctly rejected Ontario's attempt to rely on features in domestic labour laws in Europe to justify denying protections to Ontario farm workers. M.G. Mitchnick, Union Securitv and the Charter (1987) at 7-8 R. Blanpain, "Comparativism and Labour Law and Industrial Relations", in Comparative Labour Law and Industrial Relations in Industrialized Market Economies, 7thed (2001) at 18-20 Otto Kahn-Freund, "Uses and Misuses of Comparative Law", (January 1974) 37:l Modern Law Review 1 at 12, 20-21, 27 Court of Appeal Decision, AR, Vol. I, Tab 4 at 53-54, para. 86-87

4. 91.

Agricultural Workers' Right to Bargain Collectively is Violated

The Supreme Court has ruled that "laws or state actions that prevent or deny

meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining." B.C. Health Services, supra at para. 96; see also para. 35, 92

92.

That is precisely the situation in this appeal. In this case, the impugned legislation

is squarely directed at agricultural workers' capacity to bargain collectively. By excluding farm workers from statutory protection for collective bargaining, the impugned laws deny and foreclose the very process of collective bargaining that is protected under s. 2(d). This constitutes a clear breach of the s. 2(d) freedom of association. 93.

Ontario's submission that by not expressly prohibiting collective bargaining, the

AEPA provides sufficient statutory protection to effectively exercise the right to bargain collectively is entirely divorced from Canadian labour relations history and from the evidence in this case. Ontario presents a wholly decontextualized and theoretical analysis. The same "no prohibition" argument was made regarding the right to organize and was rejected in Dunmore. Dunmore v. Ontario, supra at para. 23

94.

There is ample evidence on the record to establish that without statutory protection

for collective bargaining agricultural workers are unable to undertake that exercise of freedom of association. Whether there is interference with farm workers' freedom of association must be analyzed contextually having regard to the long history of farm workers' exclusion from protective legislation, Canadian labour relations history,the current reality of farm workers' experience and Canadian jurisprudence. a.

95.

Labour Relations History: The Need for Statutory Support

The history of labour relations in Canada has demonstrated that, in the absence of

laws which safeguard rights to bargain collectively with an employer, workers - and in particular farm workers - have not been able to effectively exercise this right. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 92-98, 105-106 Dunmore v. Ontario, supra at para. 20, 35, 42, 45

96.

International and Canadian labour policy have also long recognized that without

statutory support, farm workers will be unable to exercise their right to bargain collectively. A1 935 international survey of labour in agriculture noted:

The question of government intervention is the pivotal question of collective bargaining in agriculture. Though it must not be thought that such bargaining is in essence other than a voluntary settlement between the parties, yet unless backed to some extent by the public authority it is likely to fail in its object. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 115 Louise E. Howard, Labour in Agriculture (1935), AR, Vol. XXIII, Tab 64 (Ex. 50) at 91

97.

The Woods Task Force Report likewise expressed specific concern that farm

workers were excluded from collective bargaining legislation and that "[tlheir exclusion as employees from collective bargaining does not, however, seem to us to be justified." Task Force on Labour Relations (1968),AR, Vol. XXII, Tab 64 at 94

98.

In Dunmore, this Court held that legislative support is "absolutely crucial" in order

for agricultural workers in Ontario to be able to exercise their freedom of association. Dunmore v. Ontario, supra at para. 40-42

99.

The Ontario Superior Court of Justice and the Court of Appeal both found on the

record that farm workers in Ontario remain, just as they were in Dunmore, a vulnerable group of workers. The Court of Appeal found that "the evidence shows that it has been virtually impossible for agricultural workers to organize and to bargain collectively with their employers without statutory supports" and, further, that "the AEPA perpetuates and reinforces the pre-existing disadvantage of agricultural workers". Superior Court of Justice Decision, AR, Vol. I, Tab 2 at 11-12, para. 23 Court of Appeal Decision , AR, Vol. I, Tab 4 at 47-48, 61, para. 67-70, 111

100. The Respondents submit that legislative support remains crucial to farm workers'

ability to exercise their freedom of association and is crucial to enable them to exercise the right to bargain collectively. Farm workers' exclusion from the LRA and their treatment under the AEPA renders the statutory framework underinclusive in a manner that orchestrates, encourages and sustains violations of the right to bargain collectively.

b.

Labour Relations History: Evidence of the Supports Needed for Effective Collective Bargaining

101. The evidence of labour relations history also clearly establishes that certain minimum procedural supports are needed for employees to effectively exercise their right to bargain collectively. In particular, Canadian labour relations history has established that statutory support for the duty to bargain in good faith and recognition of exclusive rights of representation for bargaining agents with majority support, are fundamental to ensuring that the right to bargain collectively can be effective. 102. As early as 1944, Bora Laskin identified the failure to statutorily enforce "upon employers a duty to bargain collectively with the trade union representing the majority of their employees" as the principal defect that undermined unions' ability to make collective representations. To rectify this defect, the rights of collective bargaining - specifically including a duty to bargain in good faith - have been affirmatively protected in Canadian labour laws since PC1003 in 1944 and have remained cornerstones of contemporary Canadian labour legislation to this day. Fudge Aff No. 1 , AR, Vol. XVII, Tab 64 at 94-96 B. C. Health Sewices, supra at para. 99 Bora Laskin, "Union Recognition and Collective Bargaining"(Fall 1944), vol. 8(1) Public Affairs 48-56, AR, Vol. XXII, Tab 64 (Ex. 30) at 59

103. The evidence also establishes that since the 1930s' Canadian labour relations policy and law have recognized that allowing multiple employee representatives without regard to whether an association has majority support is conducive to employer influence over employee associations and undermines rather than promotes workers' effective exercise of freedom of association. Bora Laskin stated that the failure of Ontario's early labour laws to certify employees' majority choice of representative allowed employers to "make a mockery of freedom of association" by ignoring employees' choice and by fostering employee representation committees and company unions at the expense of independent trade unions.

The principle of exclusive representation has been a

cornerstone of all Canadian labour legislation since 1944 because in its absence

employers were free to, and did, actively subvert employees' freedom of association. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 93-94, 1 15-116 Bora Laskin, "Recent Labour Legislation in Canada" (1944), XXll Can. Bar Review, AR, Vol. XXII, Tab 64 (Ex. 29) at 45-46 LRA, s. 45, 56 This Court has already addressed the constitutionality of exclusive representation models in Lavigne v. O.P.S.E.U., [I9911 2 S.C.R. 21 1 and R. v. Advance Cutting & Coring Ltd. [2001] 3 S.C.R. 209

104.

Moreover, the evidence establishes that rather than being simply a model of labour

relations, the procedural supports for collective bargaining that are enacted in the LRA are the model for labour relations that has been adopted in Canada. The Canadian model for labour relations -what the OFA refers to as the "Wagner model" - has made the right to bargain collectively effective by protecting the obligation to bargain exclusively with the union that enjoys majority support; the duty to bargain in good faith; the right to a legally binding collective agreement; mechanisms to resolve bargaining disputes; and grievance arbitration to enforce the collective agreement. This protective regime is enacted not only in the Labour Relations Act, 1995 but in every piece of labour relations legislation with the exception of the AEPA. While each labour relations statute contains variations in how the key elements of the Canadian model are implemented, the AEPA is the only statute that contains none of these procedural supports for collective bargaining. LRA, ~.3(b.l),7-10, 17, 18-21, 27, 35,40,45,43,48,56, 79 AEPA, s. 18 Table of Concordance at Part VII, Tab H of this factum

105. The labour relations history also establishes that farm workers in every province

except Ontario and Alberta have their right to bargain collectively protected on the same Canadian labour relations model as all other workers - including the duty to bargain in good faith, the right of exclusive representation,and the right to effective dispute resolution mechanisms for bargaining impasse and collective agreement enforcement. c.

The AEPA and LRA Deny Farm Workers Protection for the Right to Bargain Collectively

106. The LRA is underinclusive. It wholly excludes farm workers from protections for

collective bargaining. The AEPA is underinclusivebecause it fails to provide any protection to ensure that the right to bargain collectively exists and is meaningful and effective. 107. The ILO ruled that the AEPA violates Canada's obligations under international human rights law by failing to provide agricultural workers the right to bargain collectively. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 125-126 ILO, Committee on Freedom of Association, Report 330 (March 2003), AR, Vol. XXIII, Tab 64 (Ex. 57) at 145 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations (June 2003), AR, Vol. XXIII, Tab 64 (Ex. 58) at 148

108. The evidence is that Ontario farm workers have never been able to exercise their right to bargain collectively in the absence of statutory support. The only instance in which farm workers have been able to bargain collectively was under the short-lived ALRA. 109. There is absolutely no evidence that

a group of workers'has been able to bargain

collectively with an employer under the AEPA. The two groups of workers who have organized with the UFCW at Rol-Land Farms and Platinum Produce are the only known associations under the AEPA. In both cases, the employer refused to bargain with the Union and the AEPA provides no recourse in the face of such a refusal. Neither Ontario nor the OFA produced

a evidence of any other employee associations or any successful

attempts to bargain collectively under the AEPA. Court of Appeal Decision, AR, Vol. I,Tab 4 at 48, para. 70

110. The AEPA does not protect agricultural workers' right to bargain collectively. What the AEPA grants is a "mere right to make representations" which this Court has directly stated is contrary to s. 2(d) of the Charter. At its highest, the AEPA only requires that the employer "listen to the representations if made orally, or read them if made in writing." But, "bargaining involves a giving and taking, it involves more than just the right to make

requests." Unless there is a mutual obligation to bargain in good faith, the right to make representations to a party that has no obligation to engage is meaningless. To adopt the words of Justice Cory in P.I.P.S.C. v, Northwest Territories: "The voiced grievances would have no more effect than casual complaints about the weather." AEPA, S. 5(5)-(7) P.S.A.C. v. The Queen, [I9871 1 S.C.R. 424 at 437-438 per Dickson C.J.C. [in dissent] P.I.P.S.C.v. Northwest Territories, [I9901 2 S.C.R. 367 at 382-383 per Cory J. [in dissent] B.C. Health Services, supra at para. 114

111. The AEPA does not protect the duty to bargain in good faith that this Court has said is the essence of collective bargaining. Other than the AEPA, there is no labour relations legislation anywhere in Canada that gives workers a right to make representations in the absence of a corresponding duty on the employer to negotiate. 112. The AEPA also specifically allows for fragmentation of employee representation.

It fails to protect exclusive bargaining rights for the association with majority support. This fragmentation is anomalous.

No other labour laws in Canada permit multiple

representations from workers with a single community of interest. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 104

113. Not recognizing the duty to bargain, the AEPA also lacks all the other procedural protections for collective bargaining that are found in other Canadian labour relations statutes (dispute resolution mechanisms for bargaining impasse and enforcement of collective agreements.) 114. This lack of statutory support is particularly corrosive when viewed in the context of farm workers' historical exclusion from almost all legal protections and benefits for employees and their continued exclusion from core minimum employment standards. Their exclusion from collective bargaining laws exacerbates this existing state of legal disentitlement that undermines farm workers' ability to protect their rights in the workplace.

115. As stated in Dunmore, "the didactic effects of labour relations legislation on employers must not be underestimated". The contrast between the LRA protections afforded to all other workers and the AEPA which applies to farm workers could not be more stark. By denying the procedural protections available to all other workers, and by denying these protections to the very group of workers who historically have had the least protection for their rights, the didactic effects of the AEPA are an express invitation to disregard farm workersJ attempts to bargain collectively. Through the AEPA the state facilitates and normalizes employers' refusal to engage in good faith with farm workers. Dunmore v. Ontario, supra at para. 46

116. Moreover, the AEPA revives practices which, since the 193Os, have been known to palpably undermine employeesJefforts to unionize and bargain collectively. Predictably, the AEPA yields the same results as these earlier laws: (a)

With no protection for the duty to bargain in good faith, the Respondents were unable to engage in collective bargaining. Rol-Land Farms refused to bargain with the union. While Platinum Produce heard and received the Union's representations in very brief meetings, it also refused to bargain.

(b)

With no protection for exclusive representation, Rol-Land Farms ignored the employees' majority choice of the Union as their exclusive representativeand instead promptly created a company-supported "association".

d.

No Evidence that the AEPA Protects Collective Bargaining

117. The AEPA was never intended to protect collective bargaining. In introducing the

AEPA, the Minister of Agriculture specifically described it by saying that "the proposed legislation does not extend collective baruainina to aaricultural workers." It ill suits Ontario to now suggest, contrary to that evidence, that the AEPA does provide support for collective bargaining. Hansard (7 October 2002), AR, Vol. XXIII, Tab 64 (Ex. 47) at 60

118. The legislature is presumed to know labour relations history. Where the legislature adopts a labour relations model that deviates from every other regime in Canada, the model must be subject to scrutiny. There is a heavy onus on the government to establish that the deviation from the Canadian model is based on some study or report and to establish that the deviation will in fact support, and is intended to support, the right to bargain collectively. 119. In the present case, there is absolutely no evidence that the AEPA was developed based on any study or report about the efficacy of collective bargaining for farm workers. In fact, the cursory consultations leading to the AEPA made clear that granting farm workers the right to bargain collectively was never presented as an option. 120. The absence of any such study or report is particularly glaring when the AEPA was enacted in the face of the two tripartite Task Force Reports detailing how collective bargaining could be protected for farm workers on a modified version of the LRA model. Again, before the ALRA was repealed and before the AEPA was enacted, no studies or reports were prepared that either examined the experience of farm workers under the ALRA or refuted the recommendationsof the Task Force on Agricultural Labour Relations. 121. The Respondents stress that the evidence from Ontario's witness Prof. Richard Chaykowski is "after the fact" evidence. Prof. Chaykowskiwas retained by the government only after the Union's application in this matter was filed. He was not consulted about the AEPA when it was being developed and the view he presents was not put forward by the government at the time the AEPA was introduced. Prof. Chaykowski has no expertise with farm workers and his theoretical analysis is not based on any empirical study of Ontario farm workers' experiences with collective bargaining. Most significantly, his mandate in preparing his affidavit was

to consider economic and policy rationales for excludinq

aaricultural workers from collective bargaining laws. He was not asked to consider, and did not consider, if farm workers could be included in collective bargaining laws whether it be the LRA or any modified collective bargaining law that could apply to the sector.

.

Chaykowski Cr-ex, AR, Vol. IV, Tab 30 at 76, 77, 78-80, 147-148, QQ 18-25, 27-30, 35-49, 363

122. The Respondents submit that the Court of Appeal correctly found that the impugned legislation interferes with agricultural workers' s. 2(d) freedom of association. 5.

Government Responsibility for the Violation of Section 2(d)

123. Ontario argues that the Court of Appeal erroneously applied the Charter to private actors. Ontario advanced this same argument in Dunmore. It was rejected by the Court. 124. The Court of Appeal did not apply the Charter to private conduct. It applied the Charter to ieaislation - the LRA and the AEPA - which is core government conduct squarely subject to the Charter under s. 32. The democratically-adopted Charter is intended to constrain how legislatures enact laws. Its application is not anti-democratic as Ontario suggests. Vriend v. Alberta, supra at para. 131-142

125. Laws that apply in the private sector by their very nature and intent shape the kinds of relationshipsthat can develop between private actors. Laws can privilege or encourage certain relationships or can suppress or discourage others, The Charter requires that statutes not shape relationships in a way that violates substantive Charter rights. The history of labour relations shows that without statutory protection, freedom of association remains a "hollow" right. For this reason, the Court in Dunmore ruled that the distinction between publiclprivate realms and positivelnegative state obligations must be more nuanced than the "rigid dichotomy" proposed by Ontario. The Court specifically found that state regulation of farmers' relationship with their employees is subject to the Charter: Once the state has chosen to regulate a private relationship such as that between employer and employee, I believe it is unduly formalistic to consign that relationship to a 'private sphere' that is impervious to Charterreview. ... The boundaries of that realm [where the Charterdoes not intrude] are marked, not by an a priori definition of what is 'private', but by the

absence of statutory or other governmental intervention. ... I am not prepared to say that the relationship between farmers and their employees falls within that boundary. Dunmore v. Ontario, supra at para. 29, also 19-20, 22,26,28, 34, 42 See also, Vriend v. Alberta, supra at para. 65-66 126. Dunmorefound that a posture of government restraint in the area of labour relations privileges the will of management, exposes workers to unfair labour practices and forecloses the exercise of freedom of association. As in Dunmore, legislation that excludes farm workers from statutory protectionsdesigned to safeguard freedom of association does not simply permit private interference with the fundamental freedom but implicates government in creating conditions that discredit farm workers' exercise of the fundamental freedom and that substantially orchestrate, encourage, sustain or reinforce interference with this freedom. Government cannot distance itself from the effect of its laws. Dunmore v. Ontario, supra at para. 20,26, 43-48 127. In finding that the AEPA violates s. 2(d), the Court of Appeal did not apply s. 2(d) to private employers and did not subject farm employers to "compblsion". Finding that the state had a pro-active obligation to enact supportive legislation, the Court of Appeal simply ruled that such legislation must in fact protect what this Court has already ruled is the content of the procedural right to collective bargaining that is protected by s. 2(d). 128.

In finding that, at minimum, statutory protection for farm workers' right to bargain

collectively must include the duty to bargain in good faith, exclusive representation, dispute resolution mechanisms for bargaining impasse and a mechanism to enforce the agreements reached in bargaining, the Court of Appeal safeguards the minimum procedural rights that are protected in every other labour relations regime in Canada. The Court of Appeal creates no imbalance in power between employers and employees. In requiring the minimum procedural protections that are afforded under all other Canadian labour relations statutes, the Court of Appeal's decision reflects the Canadian experience of what is actually needed to balance power in the employer-employee relationship. This

also meets s. 2(d)'s purpose of equalizing power imbalancesby protecting collective action. 129. This Court has already ruled that the duty to bargain in good faith is the very essence of the procedural right to bargain collectively and interference with this duty is interference with the procedural right. In requiring minimum protection for the duty to bargain in good faith, the Court of Appeal applied settled law from B.C. Health Services. The duty to bargain in good faith continues to protect the principle of voluntarism because it only protects the process of bargaining and not the substantive result. The terms that parties agree to through bargaining are voluntary.

Nowhere. else in Canada does

"voluntarism" in labour relations mean that legislation can create conditions where employers have the unilateral power to disregard employees' efforts to bargain collectively. 130. Historically employers' failure to recognize employees' democratically chosen representatives and failure to engage in collective bargaining was met by collective withdrawal of labour through recognition strikes. Since PC 1003, labour legislation in Canada has uniformly protected the duty to bargain in ,good faith in recognition of the deleterious impact of such strikes. Ontario suggests that in order to secure the right to bargain collectively, unlike all other workers in Canada, farm workers must resort to the "pre-statutory" practice of recognition strikes (even though elsewhere Ontario argues that strikes are not appropriate in the agricultural sector). To suggest that this complies with s. 2(d) turns the clock back generations. It wholly disregards the history of labour relations in Canada and would create conditions for disempoweredworkers that are already known to foreclose the exercise of their fundamental freedom. 131. In ruling that at a minimum legislation protecting farm workers' right to bargain collectively must contain protection for a dispute resolution mechanism in the event of impasse, the Court of Appeal did not constitutionalize any particular statutory model. The Court of Appeal expressly recognized that there are many different procedural models for resolving bargaining impasse. The right to strike is one mechanism. Mediation, interest arbitration, and final offer selection are only some other mechanisms. All labour legislation

in Canada contains protection for some dispute resolution mechanism. It is for the legislature to choose what mechanism to implement in the circumstances and how to implement it in a way that respects the underlying freedom of association and principles of fairness arising in administrative law. Alberta Labour Reference, supra per Dickson C.J.C. at 381 -386 C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 174-184

132. B.C. Health Services ruled that laws which enable employers to disregard the agreement they have reached through bargaining violate s. 2(d). In that case legislation overruled the negotiated provisions. However, that is not the only way the integrity of the bargaining process can be undermined. If the agreement reached through bargaining cannot be effectively enforced, it equally undermines the integrity of the bargaining process. Building on Canadian labour relations experience, Canadian legislation protects the integrity of bargaining by having collective agreements enforced by expert labour arbitrators through a quick, informal and inexpensive grievance process. This is done out of recognition that labour relations disputes require a quick resolution and that the court process has neither the speed nor expertise to provide this. To argue that, unlike all other workers, low paid farm workers must enforce their workplace rights through the courts, again would subject them to lesser protection than all other workers and would carry a strong didactic message about the value of their collective bargaining efforts. See, for example, Toronto (City) Board of Education v. O.S.S.T.F., District 15, [I 9971 1 S.C.R. 487 at para. 35-37 B.

Section 15: The Right to Equality

133. While the s. 2(d) analysis highlights the injury to farm workers' freedom of association, the s. 15 equality analysis provides a more complete context that illuminates why&tt

particular group of workers is denied the law's protection for collective bargaining.

134. The state's exclusion of farm workers from the LRA and its treatment of them under

the AEPA violate the s. 15 right to equality by denying equal protection and benefit of the law. The denial subjects these workers to differential treatment based on their status as agricultural workers and has the substantively discriminatory effect of imposing prejudicial burdens on them, and perpetuating and reinforcing their pre-existing disempowerment, marginalization and disadvantage. 1.

Principles of Interpretation

135. Section 15(1) of the Charter provides that: Every individual is equal before and under the law and has the right. to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added] 136. Section 15 must be interpreted in a "purposive and contextual manner in order to permit the realization of the provision's strong remedial purpose". The remedial purposes of s. 15 are (a) "to rectify and prevent discrimination against particular groups suffering social, political and legal disadvantage in society"; (b) "the amelioration of the conditions of disadvantaged persons"; and (c) "the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration." Lovelace v. Ontario (Attorney General), [2000] 1 S.C.R. 950 at para. 54, 60 Eldridge v. British Columbia (Attorney General), [I 99713 S.C.R. 624 at para. 54 R. v. Kapp, [2008] 2 S.C.R. 483 at para. 15 Andrews v. Law Society of B.C., supra at 1 71 Law v. Canada (Minister of Employment and Immigration), [I9991 1 S.C.R. 497 at para. 42-43,47, 51

137. A s.15 claim must be examined on a "subjective-objective" basis from the perspective of the claimant. The claim must be assessed in the broader social, political, historical and legal context within which the law operates and the claim arises. The "main consideration must be the impact of the law on the group concerned." The analysis of discriminatory impact must be done "with a careful eye to the context of y&

is affected by

the legislation and how it affects them." Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222 at para. 193-194 Corbiere v. Canada (Minister of Indian and Northern Affairs), [I9991 2 S.C.R. 203 at para. 63-64, per L'Heureux-Dube J. [dissenting but not with respect to this comment] Law v. Canada, supra at para. 59-61 R. v. Turpin, supra at 1331- 1332 Andrews v. Law Society of B.C., supra at 165

138. To identify if s. 15 is violated, the analysis focuses on two inquiries: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice and stereotype? R. v. Kapp, supra at para. 14-15, 17-25

2.

Differential Treatment Based on Analogous Ground of Status as Agricultural Workers

139. Under the LRA and the AEPA, agricultural workers are treated differently than other workers in Ontario. This difference results from express distinctions drawn on the face of the laws which give farm workers markedly less protection than is granted to "just about every class of worker in Ontario". Agricultural workers are denied the rights referred to earlier in para. 33 of this factum. 140. Under s. 15, everyone is entitled to equality without discrimination. While s. 15

enumerates the most common grounds of discrimination, the core right is the right to equality without discrimination. The grounds on which discrimination can arise are not closed. To constitute an analogous ground, the claimant is "not required to establish membership in a sociologically recognized group." There is nothing inherent in any "ground" that makes it a basis of discrimination. What makes any ground significant socially, politically, economically or legally - is whether the ground is employed by those with power, through design or effect, as a mechanism or lever to distribute or withhold rights in a discriminatory way.

Law v, Canada, supra at para. 66 Andrews v. Law Society of British Columbia, supra at 152-153

141.

The touchstones to determine if a ground of distinction is "analogous" are "the

purpose of s. 15(1), the nature and situation of the individual or group at issue, and the social, political and legal history of Canadian society's treatment of the group." Analogous grounds "serve to advance the fundamental purpose of s. 15(1)" and are based on "characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law." They will often encompass those "lacking in political power", "vulnerable to having their interests overlooked and their rights to equal concern and respect violated" and "vulnerable to becoming a disadvantaged group". Corbiere v. Canada, supra at para. 11-13 Andrews v. Law Society of British Columbia, supra at 152-153 R. v. Turpin, supra at 1331-1332 Law v. Canada, supra at para. 29, 37, 42-43, 93-94

142. The differential treatment in this case is based on being an agricultural worker. The status of being an agricultural worker is an analogous ground of discrimination for the purposes of s. 15 because (a) work is a fundamental aspect of a person's identity; and (b) being an agricultural worker represents a particular form of disempowerment in Canadian society that is shaped by the convergence of multiple dynamics of discrimination. Agricultural workers are agricultural workers precisely because they are the most marginalized members of the workforce. Historically and continuing to the present, this vulnerability has been perpetuated and reinforced through laws that single out agricultural workers for different and prejudicial treatment. Law v. Canada, supra at para. 93-94 cf. Dartmouth/Halifax County Regional Housing Authority v. Sparks (1 993), 101 D.L.R. (4th) 224 (N.S. S.C. A.D.) at 233-234 [public housing tenants as an analogous group] cf. Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 (C.A.) at para. 83-84 [recognizing multidimensional discrimination on sex, marital status and receipt of social assistance]

143. Early Charfercases in lower courts mechanically rejected occupational status as an analogous ground on the basis that one's occupation was not a personal characteristic and that the particular groups raising the claims (such as doctors, nurses, teachers, municipal employees and even employers) were not disadvantaged. However, the jurisprudence has evolved to openly question the assumption that work is outside the scope of s. 15 and to affirmatively find that work shares many of the markers of other analogous grounds. 144. First, it is now well-established that for individuals, work is an important defining personal characteristic. It is "one of the most fundamental aspects in a person's life", the means by which most individuals "lay claim to an equal right of respect and of concern from others". Work is "an essential component" of and "fundamental to a person's identity". Alberta Labour Reference, supra at 368-369, per Dickson C.J.C. McKinley v. B.C. Tel, [2001] 2 S.C.R. 161 at para. 53-54 Slaight Communications v. Davidson, [ I 9891 1 S.C.R. 1038 at 1054-1055 Newfoundland v. N.A.P.E., [2004] 3 S.C.R. 381 at para. 40-41

145. Second, it is also well-established that the work relationship is. inherently one of unequal power in which the employee is subordinate. Because of this power imbalance, this Court has recognized that workers in general are vulnerable and their vulnerability is underscored by the importance that our society attaches to the employment relation. This Court has also recognized that different groups of workers are subject to particular disadvantage, are particularly vulnerable to having their interests overlooked by the state, and require the protection of state legislation. Alberta Labour Reference, supra at 368-369, per Dickson C.J.C. Slaight Communications v. Da vidson, supra at 105 1- 1052 Wallace v. United Grain Growers Ltd. [ I 9971 3 S.C.R. 701 at para. 91-94 Dunmore v. Ontario, supra at para. 20-22,45-46 per BastaracheJ.; and para. 167 per L'Heureux-Dube J. [concurring] Delisle v. Canada (Deputy Attorney General), [ I 9991 2 S.C.R. 989 at para. 44-45 per Bastarache J.

146. Third, while this Court has previously denied claims by particular workers, it has done so "in view of their particular status in society". It has specifically left it open to find that a specific groupof workers constitutes an analogous ground on the appropriate facts.

R. v. Genereux, [I9921 1 S.C.R. 259 at 310-311 Delisle V. Canada, supra at para. 44-45 per Bastarache J.; at para. 8 per L'Heureux-DubeJ. Baier v. Alberta, [2007] 2 S.C.R. 673 at para. 65-66 See also: R. v. Hy andZells (2OO5), 77 O.R. (3d) 656 (C.A.) at para. 13, 15,34-36,41. [The Employeralleged that remedial legislation protecting retail workers discriminated by allowing stores under 7500 square feet to open on holidays but requiring stores over 7500 square feet to close. The Court of Appeal found that where an employee worked, defined by whether the employer could open on a holiday due to its size, was not an analogous ground but that the law did not foreclose the possibility of finding occupational status as an analogous ground in another case.]

147. In Delisle, the majority held that being an RCMP officer did not constitute an analogous ground "in view in particular of the status of police officer in society". However, the majority limited its ruling to RCMP officers and "left the door open for the possibility that other occupationally oriented forms of discrimination could fall under the scope of s. 15(1)." In her concurring reasons, Justice L'Heureux-Dube expressed her belief that while RCMP officers did not meet the s. 15 test, occupational status could, in appropriate circumstances, constitute an analogous ground. Delisle v. Canada, supra at para. 44-45 per Bastarache J. and at para. 8 per L'Heureux-Dube J., [concurring] Dunmore v. Ontario, supra at para. 167-170, per L'Heureux-Dub@J., [concurring]

148. In Baier v. Alberta, this Court's most recent ruling on the issue, the Court followed the same approach employed in Delisle. The Court did not categorically reject occupational status as a potential analogous ground. It examined the claim contextually, looking at the evidence in the case, the historical and present status of the particular employee group bringing the claim, and whether the specific occupational status at issue had been a constant marker of suspect decision making or potential discrimination. The Court's conclusion was specifically limited to the status of "teachers and other school employees." Baier v. Alberta, supra at para. 64-66

149. Fourth, this Court has already found that agricultural workers are a distinct and vulnerable group of workers. The ILO has also recognized farm workers' vulnerability and

need for equal protection in international law conventions. Dunmore v. Ontario, supra at para. 2, 41 and at para. 27 See also, Fudge Aff. No. 1, AR, Vol. XVII, Tab 64 at 125-126 Beatty, Puttina the Charter to Work, AR, Vol. XX, Tab 64 (Ex. 16) at 143 Neilson and Christie, "The Agricultural Labourer in Canada: A Legal Point of View", AR, Vol. XX, Tab 64 (Ex. 14) at 132

150. In fact, in Dunmore, Justice LIHeureux-Dube in her concurring reasons specifically found that agricultural workers constituted an analogous ground for s. 15 purposes. Dunmore v. Ontario, supra at para. 167-170, per L'Heureux-Dube J. [concurring]

151. Ultimately, whether a particular occupational status is an analogous ground must be determined on a case-by-case basis taking into account the history of the claimant group's treatment in society and in law, the patterns of discrimination that create them as a specific group, and the existence of international human rights instruments that also recognize them as vulnerable groups. A contextual analysis must recognize that, in some circumstances, state regulation that denies equal protection of the law to a group of workers may create, build on or reinforce those workers' particular pre-existing marginalization in society. In some contexts, multiple dynamics of systemic discrimination and disadvantage -such as those based on race, sex, national origin, insecure citizenship status, political vulnerability - intersect to construct a particular group of workers as a socially and legally disadvantaged group. In these circumstances, one's work - and the state's regulation of that work - coincide with and reinforce a distinctive form of social exclusion and legal, political and economic disempowerment and marginalization. 152. The mere fact that labour legislation applies to a single sector does not, in itself, amount to a s. 15 breach. But, in some cases, unlike B.C. Health Services, it does not end the analysis to say that legislation applies to a particular segment of the work force. In some situations, differential regulation of a segment of the work force creates a sub-class of workers and is possible because of the political, social and economic marginalization of the people who are doing the work. It is important to look critically at how differential

treatment in law contributes to who is doing the work, how legal regulation and other dynamics of discrimination result in different groups of individuals being disproportionately concentrated in different segments of the work force, and how the marginalization of a particular group facilitates the enactment of laws that reinforce their marginalization. 153. This analysis will not open the floodgates to recognizing any and all work-based distinctions as being analogous grounds. The factual circumstanceswhich could establish the discrete kind of social disempowerment outlined above will be limited.

The

Respondents submit that the evidence about agricultural workers meets that threshold. 154. The record in this case establishes that Ontario's farm work force is predominated by Canadian workers from the economic margins and a significant unfree migrant labour force. All levels of court have accepted this evidence of vulnerability. The evidence which has been updated since Dunmore shows that farm workers' profile of vulnerability has not changed since that time. Dunmore v. Ontario, supra at 41 Court of Appeal Decision , AR, Vol. I, Tab 4 at 47-48 See Respondents factum, supra para. 20-28

155. The record also establishes the connection, between government action and legislation and the disempowerment of agricultural workers as a group. Creating a sector of work with limited rights shapes the population of workers who do the work. First, agricultural workers' marginalized position has been embedded in and reinforced by law as farm workers have historically and to this day been excluded from many of the statutory rights and benefits provided to workers generally. This has direct consequences in lowering the conditions of their work. The result is that workers who have other options take work other than agricultural work if it is available. The workers who remain are those without other options. See Respondents factum, supra para. 26-27, 30-33

156. Secondly, since the early 1900s, the state has institutionalized migrant work as a key part of the agricultural work force. Apart from large numbers of Canadian workers recruited from regions with high unemployment, the state has recruited workers whose presence in Canada, on pain of deportation, is conditional on their working in agriculture. Foreign migrant workers make up fully 18% of those engaged in agriculture. Each year more than 16,000 workers come to Ontario from Mexico and the Caribbean on terms by which they are restricted to working on specific farms, must leave the country on completing their work, and can be repatriated without right of appeal. See Respondents factum, supra para. 24-25 and related cites to Record

157. Whether they are domestic or foreign workers, the evidence confirms that agricultural workers are "among the most economically exploited and politically neutralized individual in our society." Beatty, Puttinuthe Charter to Work, AR, Vol. XX, Tab 64 (Ex. 16) at 143 Dunmore v. Ontario, supra at para. 168, per 'L'Heureux-Dube J. [concurring]

158. The Respondents submit that recognizing the status of agricultural worker as an analogous ground engages and serves the fundamental purpose of s. 15 in rectifying and preventing discrimination against a group that has long suffered social, political and legal disadvantage in our society. It is well accepted by all levels of court that agricultural workers are a distinct and marginalized group of workers who are lacking in political power and vulnerable to the state overlooking their interests. A century of their exclusion from basic labour protections shows that their status as agriculturalworkers has been a constant marker of suspect decision making. Finally, the government has no legitimate interest in asking agricultural workers to change their jobs in order to receive equal treatment in law, particularly when they hold mainstream jobs in Ontario's second largest industry. Even if individual farm workers change their jobs, that still leaves agricultural workers as a group with second class status. To require workers to quit to get equal rights reinforces the very vulnerability at issue. It reinforces the reality which was recognized by the 1968 Woods

Task Force and in Dunmore that agricultural workers are so marginalized and their interests so disregarded by the state that they "have no recourse to protect their interests aside from the right to quit". A law that supports this disempowerment is surely suspect.

3.

The Differential Treatment is Substantively Discriminatory

159. The exclusion of agricultural workers from the LRA and their differential treatment

under the AEPA are substantially discriminatory. First, as the Court of Appeal agreed, the impugned laws perpetuate and reinforce the pre-existing disadvantage and marginalized position of agricultural workers in Ontario. They perpetuate farm workers' long history of exclusion from basic labour protections that are available to other workers. It reinforces their "limited sense of entitlement" as members of Canadian society. Court of Appeal Decision, AR, Vol. I, Tab 4 at 61, para. 111 Beatty, Puttinu the Charter to Work, AR, Vol. XX, Tab 64 (Ex. 16) at 143 Dunmore v. Ontario, supra at para. 45

160. Second, the impugned laws deny equal protection and benefit of the law in a way

that fails to correspond to agricultural workers' needs, capacities and circumstances. They have for decades been seeking the rights to unionize and bargain collectively and the Ontario Labour Relations Board has agreed for decades that "there is no 'industrial relations basis' " for denying farm workers the right to bargain collectively. Wellington Mushroom Farm, supra at para. 29, also para. 6-18

161. Third, and most importantly, in denying agricultural workers the right to bargain

collectively, the impugned laws deny them access to the very collective process by which disempowered workers can act together to rectify their disadvantage. The nature of the rights denied are critical. Collective bargaining is the fundamental mechanism of selforganization, representation and rights-enforcement that empowers workers to remedy their disadvantage and to bring democracy and the rule of law into the workplace.

162. Ontario suggests that any impact of being denied the rights to bargain collectively is offset by the fact that farm workers are entitled to some protections under laws of general application. However, none of these other pieces of legislation protect collective action by workers and so the alleged "mitigation" is inaccurate. 163. Collective bargaining is specifically about creating a participatory forum that evens the imbalance of power at work and facilitates workers' self-determination. In contrast to minimum standards legislation and other individual rights legislation, Wilson J. has described unionization and collective bargaining as securing "the promotion of the selfadvancement of working people." Excluding farm workers from this forum of engagement excludes them from a fundamental social institution that is open to other workers. Denying farm workers these rights dispossesses them of their stake in workplace democracy, devalues their interest in participating in shaping the terms and conditions of their work, and deprives them of a remedy for their pre-existing disadvantage. 164. This Court has recognized that the most compelling factor in finding substantive discrimination is when differential and prejudicial treatment is visited upon those experiencing pre-existing disadvantage. That is clearly the case here. Farm workers are subjected to prejudicial burdens not borne by other workers. As has long been recognized by legal scholars, excluding farm workers from labour relations laws means that "the legal processes which enable much of the rest of our workforce to be involved in decision-making at the workplace in a realistic way are unavailable to farm workers. Thus a group of workers who are already among the least powerful are given even less opportunity than the rest of us to participate in the formulation and application of the rules governing their working conditions." Beatty, Puttina the Charter to Work, AR, Vol. XX, Tab 64 (Ex. 16) at 144 Law v. Canada, supra at para. 63

165. The Respondents submit that, in all the circumstances, the impugned provisions of the LRA and the entirety of AEPA violate agricultural workers' right to equal protection and

equal benefit of the law under s. 15 of the Charter and are not justified under s. 1 C.

Section 1:The Violations of the Charterare Not DemonstrablyJustified

1.

Interpretive Principles

166. To establishthat a violation of a substantive Charterright is "demonstrablyjustifiable

in a free and democratic society", the Respondent must establish that ( I ) the objective of the impugned statute is "of sufficient importance to warrant overriding a constitutionally protected right or freedom"; and (2) that the impairment of the right is proportional to the importance of the objective in that (a) the means chosen to implement the objective are rationally connected to the objective; (b) the means chosen impair the Charter right "as little as possible1';and (c) the deleterious effects of the limit on the right are not disproportionate to the beneficial effects of achieving the objective. R. v. Oakes, [I 9861 1 S.C.R. 103 at 138-140 Thomson Newspaper Co. v. Canada, [I 9981 1 S.C. R. 877 at para. 123-126 Newfoundland v. N.A. P.E., supra at para. 53

167. In applying this well-established test, the Respondents submit that this Honourable

Court must refer to the following key interpretive principles. First, the s. 1 analysis must be conducted contextually. While a contextual analysis assists to determine if the government has met its burden of proof, it does not result in deference which lowers the standard of justification. Second, in order to avoid pre-empting and devaluing substantive Charter rights, infringements to Charter rights must only be upheld as "exce~tionsto their general guarantee". It is "important to remember that courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter." Third, s. 1 must be interpreted in a manner that is consistent with the substantive values underlying the Charter as a whole, including "respect for the inherent dignity of the human person", "commitment to social justice and equality" and "faith in social and political institutions which enhance the participation of individuals and groups in society." Fourth, where legislation violates Charter rights and freedoms, "courts should stand ready to intervene" as is appropriate in a constitutional democracy that requires that government

act in conformity with the Charter. RJR MacDonald Inc. v. Canada (Attorney General),[ I 99513 S.C.R. 199 at para. 134, 136 Thomson Newspapers v. Canada supra at para. 90 R. V. Oakes, supra at 135-138 [emphasis added] Alberta LabourReference, supra at 372-373, quoting Wilson J. in Singh v. Minister of Employment and Immigrant [ I 9851 1 S.C.R. 177 at 218 Reference re Secession of Quebec, [ I 9981 2 S.C.R. 21 7 at para. 64 Vriend v. Alberta, supra at para. 131- 142

168. In Dunmore and Delisle, this Court held that a contextual analysis of s. 1 did not favour deference to the legislature when examining a law where a group of workers is excluded from collective bargaining. Rather, in Dunmore the Court stated that factors in the contextual analysis "on the whole favour a strict application of the minimum impairment test". The need for strict application of s.1 is underscored by the fact that the claim arises in a context where virtually all employees in Ontario and across Canada enjoy very significant and highly developed statutory protection for their right to bargain collectively. Dunmore v. Ontario, supra at para. 57-58 See also, B.C. Health Services, supra at para. 26

2.

Is there a sufficiently pressing and substantial objective?

169. This Court has warned that government must not overstate its objectives under s.1.

A law's pressing and substantial objective must be defined precisely in relation to the on Charter rights: "The objective relevant to the s. 1 analysis is the objective of the infrinaina measure

... If the objective is stated too broadly its importance may be

exaggerated and the analysis compromised." RJR MacDonald Inc. v. Canada, supra at para. 143-144

170. The Respondents submit that Ontario has defined the objectives of the AEPA too

broadly. By setting out lengthy lists of objectives, "constraints" and "mitigating factors", Ontario seeks to subsume within the notion of "objectives" and so put beyond scrutiny the policy choices the government made in enacting the law. These are policy choices, not objectives. They must be scrutinized for minimal impairment under the s. 1 analysis.

171. The precise purposes of the AEPA that were clearly articulated by the government when the law was enacted and that are apparent on the face of the AEPA are (1) to protect the unique characteristics of farming; (2) to protect the family farm; and (3) to protect the economic vulnerability of the agricultural sector. Ministry of Labour News Release (20 December 2001), AR, Vol. XXIII, Tab 64 (Ex. 45) at 26 Ministry of Agriculture and Food News Release (7 October 2002), AR, Vol. XXIII, Tab 64 (Ex. 46) at 39 Hansard (7 October 2002), AR, Vol. XXIII, Tab 64 (Ex. 47) at 51-53 Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 107-108 AEPA, S. 1(I).

172. These same objectives were at issue in Dunmore. In that case, this Court accepted that the objectives of "protecting the unique characteristics of the family farm" and "ensuring farm productivity" were objectives that were sufficiently pressing and substantial to pass the first stage of s. 1 scrutiny under the Charter. Dunmore v, Ontario, supra at para. 52, 53

3.

Rational Connection

173. In Dunmore, this Court held that restricting Charter rights to protect the family farm could only meet the rational connection test in strictly limited circumstances. Second, the Court rejected the notion that infringing farm workers' Charter rights was rationally connected to the objective of ensuring agricultural productivity. Dunmore v, Ontario, supra at para. 54-55 Court of Appeal Decision, AR, Vol. I, Tab 4 at 69-71, para. 128-130

174. The same reasoning applies in the present case. First, there is no rational connection to the objective of protecting the family farm because the LRA and AEPA are not narrowly tailored to address the situation of the family farm. They deny all collective bargaining, even in large factory farms. This Court has already found that "in cases where the employment relationship is formalized to begin with, preserving 'flexibility and cooperation' in the name of the family farm is not only irrational, it is highly coercive."

Dunmore v. Ontario, supra at para. 54 Court of Appeal Decision, AR, Vol. I, Tab 4 at 32-33, para. 128-129 175. Second, as this Court has found, it is "highly arbitrary" to deny freedom of association on economic grounds for farm workers when these rights are extended to all workers, even in industries where there are thin profit margins and unpredictable production cycles. Dunmore v. Ontario, supra at para. 55 Court of Appeal Decision, AR, Vol. I, Tab 4 at 69-71, para. 128-130

4.

Does the violation impair Charter rights as little as possible?

176. The Respondents submit that the impugned statutes do not violate agricultural workers' Charterrights as little as possible. First, agricultural workers' exclusion from rights under the LRA is not limited to workers employed on family farms. This can be contrasted with Quebec and New Brunswick where full labour relations protection is granted to all farm workers except those on farms with less than 3 and 5 employees, respectively. Fudge Aff No. 1, AR, Vol. XVII, Tab 64 at 104 Wellington Mushroom Farm, supra at para. 20-25, 29 Quebec Labour Code, R.S.Q. c. C-27, s. 21 IndustrialRelationsAct (New Brunswick), R.S.N.B. 1973, c. 1-4, s. 1(5)(a) 177. Second, the extent to which agricultural workers must be excluded from the LRA to protect the "family farm" is debatable. Not all farmers who operate family farms oppose unionization and collective bargaining. The National Farmers Union passed a resolution supporting farm employees' right to bargain collectively. The Ministry of Food and Agriculture itself promotes formalizing work relations on farms by using clear contracts. Raper Aff No. 2, AR, Vol. XII, Tab 45 at 125-126 National Farmers Union Resolution, AR, Vol. XI, Tab 45 (Ex. D) at 155 Mawhiney Cr-ex, AR, Vol. IX, Tab 37 at 12-19, QQ 53-91 and Exhibits at AR, Vol. IX, Tab 38(3), (4) and (5) at 66-75 178. Third, the protections for the right to bargain collectively that the Respondents seek are extended to farm workers in all jurisdictions in Canada except Ontario and Alberta.

179. Fourth, the rights to bargain collectively have in fact previously been introduced in Ontario under the Agricultural Labour Relations Act. 180. Fifth, the Agricultural Labour Relations Task Force specifically addressed concerns regarding agricultural production processes, economic vulnerability of the sector and the family farm and developed consensus recommendations - endorsed by farm employers, farm labour and government alike - and established a framework for unionization and collective bargaining in Ontario agriculture that accommodated these concerns. Task Force on Agricultural Labour Relations Background Studies, Task Force Report (June 1992), Task Force Report (November 1992), AR, Vol. XXIV, Tab 65 (Ex. 5) 84-149, Tab 65 (Ex. 6) at 151-196, and Vol. XXV, Tab 65 (Ex. 7 ) at 2-29

181. Rather that seeking solutions that preserved farm workers' right to bargain collectively, the government was clear from the outset that collective bargaining for agricultural workers was not an option. Ontario has put forward no evidence that it searched for a solution that sought to minimize the impact on farm workers' rights. :Other than the 1992 Task Force Reports, no studies were undertaken and no reports prepared addressing whether collective bargaining could be extended to farm workers. No studies or reports were prepared to address this prior to the enactment of the AEPA. 182. Even through the course of this litigation, the government's evidence has not addressed whether it is possible to minimize the impact on farm workers' rights to bargain collectively. Prof. Chaykowski's after-the-fact evidence was solely directed to addressing "the labour economics and labour relations policy rationales for excludina aaricultural workers from Ontario legislation the provides workers with the right to bargain collectively with employers." He was not asked to, and did not consider, whether it was possible to include agriculturalworkers in collective bargaining legislationor to enact modified sectoralspecific legislation that protects collective bargaining for farm workers. Respondents' factum, supra at para. 121

183. The depth of the incursion on farm workers' rights is in no way needed to protect family farms from "labour disruption" or to protect agricultural production. As a complete denial of collective bargaining rights, without any attempt to minimize the denial, these incursions on Charter rights fall outside a range of "reasonable alternatives". The impugned legislation must fail for lack of minimal impairment. 9.C. Health Services, supra at para. 1 50, 154

5.

Deleterious Effects of the Legislation

184. The Respondents submit that there are no salutary effects of the legislation which outweigh the deleterious effect on constitutional rights which are outlined above. D.

The Remedy Ordered by the Court of Appeal

185. The Respondents submit that both s. 3(b.1) of the Labour Relations Act, 1995 and the entirety of the AEPA violate s.2(d) and s.15 of the Charter, that the violations cannot be justified under s. 1, and that both the AEPA and s. 3(b.1) of the LRA should accordingly be of no force and effect. 186. Where underinclusive legislation is in breach of the Charter, it is appropriate for the court to make a declaration of invalidity and to order that statutory protection be extended in a manner that complies with the reasons of the court. Dunmore v. Ontario, supra at para. 66-67

187. The Respondents submit that the Court of Appeal correctly declared the AEPA unconstitutional and correctly provided guidance on the minimum legislative supports that are required in order to ensure that statutory protection complies with the Charter. The Court of Appeal suspended that declaration for 12 months so that appropriate legislation could be enacted. The Respondents submit that this approach is consistent with the separation of powers and is a good example of the constitutional dialogue between the courts and the legislature. While the Court of Appeal identified the substantive protections

that are necessary to ensure compliance with s. 2(d) in the particular circumstances dealing with farm workers, the Court of Appeal left it to the Legislature to determine how those supportive mechanisms would be implemented. The Court of Appeal wrote: This is not a situation where there is only one appropriate response to this decision. It is up to the lesislature to assess the options, taking into account constitutional, labour relations and other factors, and to design a constitutionally acceptable model. Court of Appeal Decision, AR, Vol. I, Tab 4 at 73, para. 139

188. The Respondents submit that declaring s. 3(b. 1) of the LRA unconstitutionalequally flows from the reasoning of the Court of Appeal's decision and is an appropriate remedy. PART IV:

SUBMISSIONS ON COSTS

189. The Respondents submit that the underlying issues and the fundamental principles at stake in this appeal are not novel as suggested by Ontario. The fundamental principles were established in Dunmore and B.C. Health Services. Beginning with Cuddy Chicks Ltd.

v. Ontario (Labour Relations Board), [I9911 2 S.C.R. 5, and continuing through Dunmore and B.C. Health Services, this litigation represents the fourth time that UFCW Canada and its members have come before this Court seeking to protect farm workers rights to unionize and bargain collectively. The Respondents respectfully request their costs on this appeal and in the courts below. PART V:

ORDERS SOUGHT

190. The Respondents respectfully request that this appeal be dismissed with costs. ICH IS RESPECTFUL

th DAY OF OCTOBER 2009.

Counsel for the Respondents Fraser, UFCW Canada, Liu, McGorman and Church

PART VI:

TABLE OF AUTHORITIES

Cases Tab

Description

1.

Andrews v. Law Society of British Columbia, [I9891 1 S.C.R. 143

2.

Baier v. Alberta, [2007] 2 S.C.R. 673

Cited in Factum (Paragraph numbers)

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [ I 9991 3 S.C.R. 3 Corbiere v. Canada (Minister of lndian and Northern Affairs), [1999] 2 S.C.R. 203 Cuddy Chicks Ltd., [ I 9881 OLRB Rep May 468 Cuddy Chicks Ltd. v, Ontario (Labour Relations Board), [I9911 2 S.C.R. 5 C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 '

Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th) 224 (N.S. S.C. A.D.) Delisle v. Canada (Deputy Attorney General), [ I 9991 2 S.C.R. 989 Dunmore v. Ontario (Attorney General) [2001] 3 S.C.R. 1016

Eldridge v. British Columbia (Attorney General), [ I 9971 3 S.C.R. 624 Ermineskin Indian Band and Nation v. Cana,da,[2009] 1 S.C.R. 222 Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 (C.A.)

Ford v. Quebec (Attorney General), [I 9881 2 S.C.R. 712 Haig v. Canada, [I 9931 2 S.C.R. 995 Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, [2007]2 S.C. R. 391 I.L.W.U. Local 514 v. Prince Rupert Grain Ltd., [I 9961 2 S.C.R. 432 Lavigne v. O.P.S.E.U.,[I9911 2 S.C.R. 21 1 Law v. Canada (Minister of Employment and Immigration), [I 9991 1 S.C. R. 497 Lovelace v. Ontario (Attorney General), [2000] 1 S.C.R. 950 McKinley v. B.C. Tel, [2001] 2 S.C.R.

161 Newfoundland v. N.A.P.E., [ZOO41 3 S.C.R. 381 Niagara Poultry Service, [I 9951 OLRB Rep. Nov. 1396 P.I.P.S.C. v. Northwest Territories (Commissioner), [I 9901 2 S.C.R. 367 P.S.A.C. V. The Queen, [I9871 1 S.C.R.

424 R. v. Advance Cutting & Coring Ltd. [ZOO11 3 S.C.R. 209 R. v. Genereux, [I 9921 1 S.C.R. 259 R. v. Hy and Zel's (2005), 77 O.R. (3d) 656 (C.A.) R. v. Kapp, [2008]2 S.C.R. 483 R. v. Oakes, [I9861 1 S,C.R. 103 R. v. Turpin, [I 9891 1 S.C.R. 1296 R. v. Zundel, [I 9921 2 S.C.R. 731 at 758

33.

Reference re Public Service Employee Relations Act (Alberta), [ I 9871 1 S.C.R. 31 3

70, 75, 1 31 , 1 44-1 45, 167

34.

Reference re Secession of Quebec, [I9981 2 S.C.R. 217

167

35.

RJR MacDonald Inc. v. Canada (Attorney General), [ I 9951 3 S.C.R.

167,169

36.

Slaight Communications v. Da vidson, [I 9891 1 S.C.R. 1038

144-145

37.

Spruceleigh Farms, [ I 9721 OLRB Rep. Oct. 860

18

38.

Thomson Newspaper Co. v. Canada, [I9981 1 S.C.R. 877

1 66-1 67

39.

Toronto (City) Board of Education v. O.S.S.T,F., District 15, [ I 9971 i S.C.R. 487

132

40.

Vriend v. Alberta, [ I 9981 1 S.C.R. 493

74, 124-125, 167

Wallace v. United Grain Growers Ltd. [I9971 3 S.C.R. 701 Wellington Mushroom Farm [ I 9801 OLRB Rep. May 81 3

Reports, Texts and Articles

R. Blanpain, "Comparativism and Labour Law and lndustrial Relations", in Comparative Labour Law and Industrial Relations in Industrialized Market Economies, 7thed (The Hague: Kluwer Law International, 2001) Otto Kahn-Freund, "Uses and Misuses of Comparative Law", (January 1974) 37:1 Modern Law Review 1

M.G. Mitchnick, Union Securitv and the Charter (Toronto: Butterworths, 1987)

PART VII:

STATUTORY PROVISIONS

(Relevant Provisions of Statutes, Regulations and By-Laws) Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, excerpts from s. 1(I), 3, 7, 15, 17-21, 27, 35, 40, 43, 45, 47, 48, 56, 57, 58, 59, 70, 87, 96(1)-(3), 110, 119, 128.1 Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 Agricultural Labour Relations Act, S.O. 1994, c. 6 Employment Standards Act, 2000, S.O. 2000, c. 41, Parts VII, VIII, IX, X, XI Exemptions, Special Rules and Establishment of Minimum Wage - 0. Reg. 285101 made under the Employment Standards Act, 2000, sections 2(2), 4(3), 8, 9,24-27 Farming Operations - 0. Reg. 414105 made under the Occupational Health and Safety Act Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16, s. 14(1.2)-(I -4) Table of Correspondence between Labour Relations Act, 1995 and Other Ontario Collective Bargaining Statutes List of Canadian Collective Bargaining Statutes that apply to Agricultural Workers Quebec Labour Code, R.S.Q. c C-27, s. 21 Industrial Relations Act (New Brunswick), R.S.N.B. 1973, c. 1-4, s. 1(5)(a)

A

Labour Relations Act, 1995,s. 1 (I),3,7,15,17-21,27,35,40,43,45,47,48,56, 57,58,59,70,87,96(1)-(3),110,119,128.1

Definitions

1.

(1)

In this Act, "agriculture" includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to this Act as it read on June 22, 1994;

3.

This Act does not apply, to a domestic employed in a private home; (a) to a person employed in hunting or trapping; (b) (b.1) to an employee within the meaning of the Agricultural Employees Protection Act, 2002; to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture; to a member of a police force within the meaning of the Police Services Act; except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 41 (1) of that Act; to a member of a teachers' bargaining unit established by Part X.l of the Education Act, except as provided by that Part, or to a supervisory officer, a principal or a vice-principal; to a member of the Ontario Provincial Police Force; to an employee within the meaning of the Colleges Collective Bargaining Act; to a provincial judge; or to a person employed as a labour mediator or labour conciliator.

Application for certification

Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit. Where a trade union has been certified as bargaining agent of the employees of an employer in a bargaining unit and has not entered into a collective agreement with the employer and no declaration has been made by the Board that the trade union no longer represents the employees in the bargaining unit, another trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit determined in the certificate only after the expiration of one year from the date of the certificate. Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties and the parties have not entered into a collective agreement and the Board has not made a declaration under section 66, another trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the recognition agreement only after the expiration of one year from the date thacthe recognition agreement was entered into. Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last three months of its operation. Where a collective agreement is for a term of more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the 34th month of its operation and before the commencement of the 37th month of its operation and during the three-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last three months of its operation, as the case may be. Where a collective agreement referred to in subsection (4) or (5) provides that it will continue to operate for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, a trade union may apply to the Board for

certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement during the further term or successive terms only during the last three months of each year that it so continues to operate, or after the commencement of the last three months of its operation, as the case may be. (7)

The right of a trade union to apply for certification under this section is subject to subsections 10 (3) and 11.I(4), section 67, subsections 128.1 (1O), (15), (21), (22) and (23) and subsection 160 (3).

(8)

An application for certification may be withdrawn by the applicant upon such conditions as the Board may determine.

(9)

Subject to subsection (9.1), if the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.

(9.1) If the trade union withdraws the application before a representation vote is taken, and that trade union had withdrawn a previous application under this section not more than six months earlier, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year has elapsed after the second application was withdrawn. (9.2) Subsection (9.1) does not apply if the trade union that withdrew the application is a trade union that the Board is prohibited from certifying under section 15. (9.3) Despite subsection (9.1), the Board may consider an application for certification by a trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if, the position of the employee at the time the original (a) application was made was different from his or her position at the time the new application was made; and the employee would not have been in the bargaining (b) unit proposed in the new application had he or she still been occupying the original position when the new application was made. (10)

If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by any

trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is withdrawn. (10.1) Despite subsection (lo), the Board may consider an application for certification by a trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if, the position of the employee at the time the original (a) application was made was different from his or her position at the time the new application was made; and the employee would not have been in the bargaining (b) unit proposed in the new application had he or she still been occupying the original position when the new application was made. (10.2) Subsection (10) does not apply if the trade union that withdrew the application is a trade union that the Board is prohibited from certifying under section 15. (1 1)

The trade union shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(12)

The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13)

The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14)

If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

What unions not to be certified 15.

The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of

any ground of discrimination prohibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms.

Obligation to bargain 17.

The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

Appointment of conciliation officer

Where notice has been given under section 16 or 59, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement. Despite the failure of a trade union to give written notice under section 16 or the failure of either party to give written notice under sections 59 and 131, where the parties have met and bargained, the Minister, upon the request of either party, may appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement. Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties,, the Minister may, upon the request of either party, appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement. Despite anything in this Act, where the Minister has appointed a conciliation officer or a mediator and the parties have failed to enter into a collective agreement within 15 months from the date of such appointment, the Minister may, upon the joint request of the parties, again appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement, and, upon the appointment being made, sections 19 to 36 and 79 to 86 apply, but the appointment is not a bar to an applicationfor certification or for a declaration that the trade union no longer represents the employees in the bargaining unit. Appointment of mediator

19.

(1)

Where the Minister is required or authorized to appoint a conciliation officer, the Minister may, on the request in writing of the parties, appoint a mediator selected by them jointly before he or she has appointed a conciliation board or has informed the parties that he or she does not consider it advisable to

appoint a conciliation board. (2)

Where the Minister has appointed a mediator after a conciliation officer has been appointed, the appointment of the conciliation officer is thereby terminated.

Duties and report of conciliation officer

Where a conciliation officer is appointed, he or she shall confer with the parties and endeavour to effect a collective agreement and he or she shall, within 14 days from his or her appointment, report the result of his or her endeavour to the Minister. The period mentioned in subsection (1) may be extended by agreement of the parties or by the Minister upon the advice of the conciliation officer that a collective agreement may be made within a reasonable time if the period is extended. Where the conciliation officer reports to the Minister that the differences between the parties concerning the terms of a collective agreement have been settled, the Minister shall forthwith by notice in writing inform the parties of the report. Conciliation board, appointment of members

21.

If the conciliation officer is unable to effect a collective agreement within the time allowed under section 20, the Minister shall forthwith by notice in writing request each of the parties, within five days of the receipt of the notice, to recommend one person to be a member of a conciliation board, and upon the receipt of the recommendations or upon the expiration of the five-day period he or she shall appoint two members who in his or her opinion represent the points of view of the respective parties, and the two members so appointed may, within three days after they are appointed, jointly recommend a third person to be a member and chair of the board, and upon the receipt of the recommendation or upon the expiration of the three-day period, he or she shall appoint a third person to be a member and chair of the board; or the Minister shall forthwith by notice in writing inform each of the parties that he or she does not consider it advisable to appoint a conciliation board.

27.

As soon as a conciliation board is established, it shall endeavour to effect agreement between the parties on the matters referred to it.

...., Mediator

35.

(1)

Where a mediator is appointed, he or she shall confer with the parties and endeavour to effect a collective agreement.

(2)

A mediator has all the powers of a conciliation board under section 33.

(3)

Sections 30 and 34 apply with necessary modifications to a mediator.

(4)

The report of a mediator has the same effect as the report,of a conciliation board.

.... . Voluntary arbitration

Despite any other provision of this Act, the parties may at any time following the giving of notice of desire to bargain under section 16 or 59, irrevocably agree in writing to refer all matters remaining in dispute between them to an arbitrator or a board of arbitration for final and binding determination. The agreement to arbitrate shall supersede all other dispute settlement provisions of this Act, including those provisions relating to conciliation, mediation, strike and lock-out, and the provisions of subsections 48 (7), (8), (1I ) , (12) and (18) to (20) apply with necessary modifications to the proceedings before the arbitrator or board of arbitration and to its decision under this section. For the purposes of section 67 and section 132, an irrevocable agreement in writing referred to in subsection (1) shall have the same effect as a collective agreement.

First agreement arbitration 43.

(1)

Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

Recognition provisions

45.

(1)

Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein.

Deduction and remittance of union dues

47.

(1)

Except in the construction industry and subject to section 52, where a trade union that is the bargaining'agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union, forthwith.

Arbitration

48.

(1)

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

(2)

If a collective agreement does not contain a provision that is mentioned in subsection (I), it shall be deemed to contain a provision to the following effect: Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of the first party's appointee to an arbitration board.

The recipient of the notice shall within five days inform the other party of the name of its appointee to the arbitration board. The two appointees so selected shall, within five days of the appointment of the second of them, appoint a third person who shall be the chair. If the recipient of the notice fails to appoint an arbitrator, or if the two appointees fail to agree upon a chair within the time limited, the appointment shall be made by the Minister of Labour for Ontario upon the request of either party. The arbitration board shall hear and determine the difference or allegation and shall issue a decision and the decision is final and binding upon the parties and upon any employee or employer affected by it. The decision of a majority is the decision of the arbitration board, but if there is no majority the decision of the chair governs.

(3)

If, in the opinion of the Board, any part of the arbitration provision, including the method. of appointment of the arbitrator or arbitration board, is inadequate, or if the provision set out in subsection (2) is alleged by either party to be unsuitable, the Board may, on the request of either party, modify the provision so long as it conforms with subsection ( I ) , but, until so modified, the arbitration provision in the collective agreement or in subsection (2), as the case may be, applies.

(4)

Despite subsection (3), if there is failure to appoint an arbitrator or to constitute a board of arbitration under a collective agreement, the Minister, upon the request of either party, may appoint the arbitrator or make the appoi'ntments that are necessary to constitute the board of arbitration, as the case may be, and any person so appointed by the Minister shall be deemed to have been appointed in accordance with the collective agreement.

(5)

On the request of either party, the Minister may appoint a settlement officer to endeavour to effect a settlement before the arbitrator or arbitration board appointed under subsection (4) begins to hear the arbitration. However, no appointment shall be made if the other party objects.

(6)

Where the Minister has appointed an arbitrator or the chair of a board of arbitration under subsection (4), each of the parties shall pay one-half the remuneration and expenses of the person appointed, and, where the Minister has appointed a member of a board of arbitration under subsection (4) on failure of one of the parties to make the appointment, that party shall pay the remuneration and expenses of the person appointed.

(18)

The decision of an arbitrator or of an arbitration board is binding, (a) upon the parties;

in the case of a collective agreement between a trade union and an employers' organization, upon the employers covered by the agreement who are affected by the decision; in the case of a collective agreement between a council (c) of trade unions and an employer or an employers' organization, .upon the members or affiliates of the council and the employer or the employers covered by the agreement, as the case may be, who are affected by the decision; and upon the employees covered by the agreement who are (d) affected by the decision, and the parties, employers, trade unions and employees shall do or abstain from doing anything required of them by the decision. (b)

(19)

Where a party, employer, trade union or employee has failed to comply with any of the terms of the decision of an arbitrator or arbitration board, any party, employer, trade union or employee affected by the decision may file in the Superior Court of Justice a copy of the decision, exclusive of the reasons therefor, in the prescribed form, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such.

Binding effect of collective agreements on employers, trade unions and employees 56.

A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

Binding effect of collective agreements: other 57.

(1)

A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargainedwith the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such

person ceases to be a member of the employers' organization during the term of operation of the agreement, the person shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions. (2)

When an employers' organization commences to bargain with a trade union or council of trade unions, it shall deliver to the trade union, or council of trade unions a list of the names of the employers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the employers' organization for whose employees the trade union or council of trade unions is entitled to bargain and to make a collective agreement at that time, except an employer who, either alone or through the employers' organization, has notified the trade union or council of trade unions in writing before the agreement was entered into that the employer will not be bound by a collective agreement between the employers' organization and the trade union or council of trade unions.

(3)

A collective agreement between a certified council of trade unions and an employer is, subject to and for the purposes of this Act, binding upon each trade union that is a constituent union of such a council as if it had been made between each of such trade unions and the employer.

(4)

A collective agreement between a council of trade unions, other than a certified council of trade unions, and an employer or an employers' organization is, subject to and for the purposes of this Act, binding upon the council of trade unions and each trade union that was a member of or affiliated with the council of trade unions at the time the agreement was entered into and on whose behalf the council of trade unions bargained with the employer or employers' organization as if it was made between each of such trade unions and the employer or employers' organization, and upon the employees in the bargaining unit defined in the agreement and, if any such trade union ceases to be a member of or affiliated with the council of trade unions during the term of operation of the agreement, it shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the employer or employers' organization, as the case may be.

(5)

Where a council of trade unions, other than a certified council of trade unions, commences to bargain with an employer or an employers' organization, it shall deliver to the employer or employers' organization a list of the names of the trade unions on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members or affiliates of the council of trade unions for whose employees the respective trade unions are entitled to bargain and to make a collective agreement at that time with the employer or the employers' organization, except a trade union that, either by itself or through the council of trade unions, has notified the

employer or employer's organization in writing before the agreement is entered into that it will not be bound by a collective agreement between the council of trade unions and the employer or employers' organization. Minimum term of collective agreements

58.

(1)

If a collective agreement does not provide for its term of operation or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.

(2)

Despite subsection (I), the parties may, in a collective agreement or otherwise and before or after the collective agreement has ceased to operate, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal with or without modificationsor for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit and the continuation of the collective agreement may be terminated by either party upon 30 days notice to the other party.

(3)

A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.

(4)

Despite anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and the employer agrees with the trade union or council of trade unions to be bound by the collective agreement between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding.

(5)

Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.

Notice of desire to bargain for new collective agreement

59.

(1)

Either party to a collective agreement may, within the period of 90 days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.

Employers, etc., not to interfere with unions

70.

No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

Protection of witnesses rights 87.

(1)

No employer, employers' organization or person acting on behalf of an employer or employers' organization shall, refuse to employ or continue to employ a person; (a) threaten dismissal or otherwise threaten a person; (b) discriminate against a person in regard to employment (c) or a term or condition of employment; or intimidate or coerce or impose a pecuniary or other (d) penalty on a person, because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

Inquiry, alleged contravention 96.

(1)

The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2)

The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3)

The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.

Board 110.

(1)

The board known as the Ontario Labour Relations Board is continued under the name Ontario Labour Relations Board in English and Commission des relations de travail de I'Ontario in French.

(2)

The Board shall be composed of a chair, one or more vice-chairs and as many members equal in number representative of employers and employees respectively as the Lieutenant Governor in Council considers proper, all of whom shall be appointed by the Lieutenant Governor in Council.

(5)

One of the divisions of the Board shall be designated by the chair as the construction industry division, and it shall exercise the powers of the Board under this Act in proceedings to which sections 126 to 168 apply, but nothing in this subsection impairs the authority of any other division to exercise such powers.

(9)

The chair or a vice-chair, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.

(16)

The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.

(17)

The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.

(18)

The chair may make rules to expedite proceedings to which the following provisions apply: Section 8.1 (Disagreement by employer with union's estimate). 0.1 Section 13 (right of access) or 98 (interim orders). 1. 2. Section 99 (jurisdictional, etc., disputes). 3. Subsection 114 (2) (status as employee or guard). 4. Sections 126 to 168 (construction industry). Such other provisions as the Lieutenant Governor in Council may by 5. regulation designate.

Rules made under subsection (18) come into force on such dates as the Lieutenant Governor in Council may by order determine. Rules made under subsection (18), may provide that the Board is not required to hold a (a) hearing; may limit the extent to which the Board is required to (b) give full opportunity to the parties to present their evidence and to make their submissions; and may authorize the Board to make or cause to be made (c) such examination of records and such other inquiries as it considers necessary in the circumstances.

Secrecy 119. (1)

The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

CONSTRUCTION INDUSTRY Application for certification without a vote Election

128.1 (1)

(13)

A trade union applying for certification as bargaining agent of the employees of an employer may elect to have its application dealt with under this section rather than under section 8.

If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it may, (a) (b)

certify the trade union as the bargaining agent of the employees in the bargaining unit; or direct that a representation vote be taken.

1.

LO/ DE 1995 SUR LES RELATIONS DE TRAVAIL, s. 1( I ) ,3 , 7 , 1 5 , 1 7 - 2 1 , 2 7 , 3 5 , 40, 43, 45, 47, 48, 56, 57, 58, 5 9 , 7 0 , 87, 96(1)-(3),11 0 , 119, 128.1

1. (1) Les definitions qui suivent s'appliquent a la presente loi. ((agriculture)) S'entend de tous ses domaines d'activite, notamment la production laitiere, I'apiculture, I'aquiculture, I'elevage du betail, dont I'elevage non traditionnel, I'elevage des animaux a fourrure et de la volaille, la production, la culture et la recolte de produits agricoles, y compris les ceufs, les produits de I'erable, les champignons et le tabac, et toutes les pratiques qui font partie integrante d'une exploitation agricole. La presente definition exclut toutefois tout ce qui n'a pas ou n'aurait pas ete etabli comme etant de I'agriculture aux termes de I'article 2 de la Loi que la presente loi remplace telle qu'elle existait au 22 juin 1994. (