The Professional Institute of the Public Service of Canada v The Commissioner of the Northwest Territories [1990] 2 S.C.R. 367: Freedom of association - Collective bargaining - Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.


Constitutional law - Charter of Rights - Freedom of association - Collective bargaining - Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively - Whether territorial legislation infringes freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms - If so, whether limitation on freedom of association justifiable under s. 1 of Charter - Public Service Act, R.S.N.W.T. 1974, c. P-13, s. 42(1)(b).

The appellant Institute was the bargaining agent for a number of nurses employed by the federal government in the Northwest Territories until the nurses became employees of the territorial government. As a result of their change of employment the nurses ceased to belong to the bargaining unit on behalf of which the Institute had been certified to bargain collectively and became eligible for membership in the respondent Association, which had been incorporated to bargain collectively on behalf of all non-excluded territorial employees. The Institute sought incorporation as required by s. 42(1)(b) of the Public Service Act for the purposes of representing its former members. Under that section an employees' association must be incorporated by an Act if it is to bargain collectively on behalf of its members. The territorial government declined to enact the required legislation. The Institute applied to the territorial Supreme Court for a declaration that s. 42(1) of the Act was inconsistent with freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms. The trial judge found that s. 42(1) violated s. 2(d) of the Charter and was not a reasonable limit within the meaning of s. 1. The Court of Appeal allowed the respondent Commissioner's appeal.

Held (Wilson, Gonthier and Cory JJ. dissenting): The appeal should be dismissed. Section 42(1)(b) of the Public Service Act does not infringe s. 2(d) of the Charter.

Per Sopinka J.: The absence in s. 42(1)(b) of a set of objective conditions for the certification of a union is not a violation of freedom of association. While the statutory monopoly created by the section prevents a rival union from bargaining for its members, such legislative frustration of an association's objects is not a violation of s. 2(d) if the restriction is not aimed at and does not affect the establishment or existence of the association -unless the association's activity is another Charter-protected right or an activity that may lawfully be performed by an individual. The statutory monopoly has no effect on the existence of the Institute or the ability of any individual to be a member of it, and the activity of collective bargaining for working conditions is not constitutionally protected. Since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer. Given that a government has no common law obligation to bargain at all and can suspend a statutory obligation to bargain altogether, there can be no constitutional impediment to its choosing to bargain with a particular employees' representative.

Further, the requirement in s. 42(1)(b) that a union be incorporated for it to bargain collectively does not constitute a violation of s. 2(d) of the Charter. The section does not prohibit the establishment of or membership in other unions, or prevent any such union from seeking incorporation under the Act. Nor does it require that an employees' association incorporated under the Act be constituted in a particular way or that it submit the scope of its objects, terms of membership or rules of internal governance to legislative control. The requirement of incorporation in s. 42(1)(b) is the means by which the territorial government has chosen to recognize the union or unions with which it will bargain collectively. A grant of collective bargaining rights must account for the associational rights of affected individuals, but this means nothing more than permitting rival associations to exist and vie for recognition.

Per L'Heureux-Dubé J.: Sopinka J.'s reasons and result were agreed with subject to brief comments. The impugned legislative provision in this case does not burden the appellant's freedom of association. The objects, purposes and activities of an association are irrelevant for Charter purposes. While one of the primary goals of employee associations is to attain the status of bargaining agent and to bargain collectively, the attaining of this status, its retention and the association's subsequent activity are not protected under s. 2(d). Interpreting s. 2(d) as embracing any object of an association whose fulfillment is fundamental to the existence of the association has serious consequences which militate strongly against adopting such an approach, since the concept of freedom of association must be applied to a wide range of political, religious, social or economic associations with a wide variety of objects. Further, adopting the line of reasoning of the majority in the trilogy, which is determinative of the issue in the present case, does not leave unions powerless to achieve their objectives, since a broad range of union activity is still protected and since unions have access to the political process.

Per La Forest J.: Sopinka J.'s judgment was generally agreed with, but it is unnecessary to say anything about whether the right of association must include the freedom of persons to join together in pursuit of objects they could lawfully pursue as individuals.

Per Dickson C.J.: The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include a guarantee of the right to bargain collectively, and the s. 2(d) right adheres only to individuals. The determination of how bargaining agents are chosen is the first stage of the right to bargain collectively. Further, in the context of an inter-union struggle for the status of exclusive bargaining agent, the right claimed by the appellant must be characterized as a group right adhering to the trade union. The legislative choice of how bargaining agents are chosen is thus beyond constitutional scrutiny under s. 2(d) of the Charter both because it is an element of the collective bargaining process and because of the individual nature of the s. 2(d) right. Finally, since the Northwest Territories government was under no duty to enact a scheme of collective bargaining, the limitations placed upon a purely statutory entitlement do not attract the protection of s. 2(d) of the Charter. If s. 2(d) does not guarantee the right to bargain collectively, it cannot guarantee a right to any particular bargaining agent.

Per Wilson, Gonthier and Cory JJ. (dissenting): By restricting the freedom of employees to form and to change their association, s. 42(1)(b) of the Public Service Act infringes an individual's right to associate protected by s. 2(d) of the Charter. Section 42(1)(b) allows the government to totally monopolize the decision as to which associations are to be incorporated and thereby become "employees' associations". Only those associations which in the government's discretion have been incorporated can then participate in the collective bargaining process. There are neither bars to curb nor guidelines to direct the exercise of this absolute discretion. The section thus provides the means by which the government can, for all collective bargaining purposes, deny the very existence of an association selected by the employees to bargain on their behalf. Such untrammelled government discretion prima facie violates an individual's freedom of association. The fact that those who form the association may still meet together without interference from the state has no meaning if this association cannot be recognized under the relevant labour legislation. Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. The right of employees to join the association of their choice, and their right to change their collective bargaining association, are of fundamental importance, yet these rights are frustrated by s. 42(1)(b).

Section 42(1)(b) of the Public Service Act is not justifiable under s. 1 of the Charter. The objective of the Act is to provide the means of selecting a collective bargaining agent for the employees. While the necessity of having some structure to the process is of sufficient importance to warrant overriding a constitutionally protected right, the legislation is out of proportion to the objective sought and restricts the employees' freedom of association far more than is reasonably necessary. Unlike most of the collective bargaining statutes in the other Canadian jurisdictions, the legislation fails to achieve a reasonable balance between the rights of the individual, the union and the employer. It does not provide for any process by which the employees' choice of bargaining agent may be determined, and incorporation of the employees' association can only be attained by the exercise of an untrammelled government discretion when the government is itself an interested party to the ensuing collective bargaining. In order to create a structured collective bargaining process it is not necessary to give the government complete control over designation of the employees' bargaining agent. This denial of the employees' right to select their own bargaining agent in the manner contemplated in other jurisdictions cannot be justified as a reasonable limit under s. 1 of the Charter.

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