Supreme Court upholds Ont. farm union law

Legislation blocking Ontario’s farm workers from collective bargaining will stand, after Canada’s top court dismissed a major union’s court battle against the province’s rules.

The Supreme Court of Canada on Friday upheld Ontario’s Agricultural Employees Protection Act (AEPA), which had previously been overturned at the Ontario Court of Appeal in 2008.

The top court dismissed the action brought by the United Food and Commercial Workers (UFCW Canada), which had challenged the 2003 law in court on behalf of Xin Yuan Liu, Julia McGorman and Billie-Jo Church, workers at a Windsor-area mushroom farm.

The Supreme Court ruled that while Canada’s Charter of Rights and Freedoms “protects the right to associate to achieve collective goals,” the province isn’t required to provide “a particular form of collective bargaining rights” to farm workers to fulfill its Charter obligations.

The AEPA was introduced by the Tory government of Ernie Eves, which had claimed it protected the rights of farm employees to associate “while recognizing the unique characteristics of agriculture and the family farm.”

The Eves government brought in the AEPA after the previous Mike Harris Tory government repealed the Agricultural Labour Relations Act — a law from Bob Rae’s previous NDP government that had granted collective bargaining rights to farm workers.

The AEPA instead gave ag workers the right to form and join an employees’ association, or different employees’ associations, and to make representations to their employers through such associations. A union could act as an employees’ association.

But the AEPA was meant to stop short of collective bargaining, in that it specifically would not grant an employees’ association or union the right of exclusive representation for all of a company’s workers.

The Ontario Superior Court of Justice rejected UFCW’s claims in early 2006, ruling that the AEPA met the minimum statutory requirements necessary to protect the freedom to organize.

The Ontario Court of Appeal, however, declared the AEPA constitutionally invalid, finding it “impaired the capacity of agricultural workers to meaningfully exercise their right to bargain collectively.”

Dalton McGuinty’s Liberal government then applied in early 2009 to the Supreme Court for leave to appeal the provincial appeal court’s ruling.

Rol-Land Farms, the mushroom company at the heart of UFCW Canada’s court challenge, sought and got creditor protection in mid-December 2008 as “a result of current economic circumstances” but didn’t elaborate at the time on what those circumstances were.

“Imposing a duty”

The top court’s ruling on Friday found the Ontario legislature “is not required to provide a particular form of collective bargaining rights to agricultural workers, in order to secure the effective exercise of their associational rights” and that the Charter of Rights “does not empower the Court to privilege certain associations over others.”

Also, while the AEPA “does not expressly refer to a requirement that the employer consider employee representations in good faith,” the Supreme Court wrote, the Ontario law should be interpreted as “imposing a duty” on agricultural employers to do so.

As for the UFCW’s claim that the AEPA discriminates against ag workers, the top court found that “the category of agricultural worker does not rise to the level of an immutable… personal characteristic of the sort that would merit protection against discrimination.”

Just one of the Supreme Court members, Justice Rosalie Abella, dissented in the union’s favour, arguing instead that “preventing all agricultural workers from access to a process of collective bargaining in order to protect family farms, no matter their size or nature of the agricultural enterprise, harms the (Charter) s. 2(d) right in its entirety, not minimally.

“It is worth noting too that all (other) provinces except Alberta give agricultural workers the same collective bargaining rights as other employees,” Abella wrote. “There is no evidence… that the nature of farming in Ontario uniquely justifies a severely restrictive rights approach.”

Interveners at the Supreme Court included the offices of the federal and four provincial attorneys-general, the Ontario Federation of Agriculture, the B.C. Agriculture Council, Justicia for Migrant Workers and the Canadian Civil Liberties Association, among others.

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