Check Their Privilege

In my post criticizing the Supreme Court’s recent decisions in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, which constitutionalized rights to collective bargaining and to strike, I suggested, without elaborating, that they are inconsistent with the Supreme Court’s jurisprudence in that they constitutionalize organized labour’s economic rights and impose constitutional burdens on private parties. In this post, I want to develop this argument a little more.

The framers of the Charter chose not to include economic rights in our constitution ― neither the old-fashioned property rights and freedom of contract, nor the newer “social and economic” rights such as a right to housing, healthcare, or a pension. And, generally speaking, the Supreme Court has been extremely reluctant to protect anyone’s economic rights of either sort under the Charter. For instance, in Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6, the Supreme Court held that “[t]he ability to generate business revenue by one’s chosen means is not a right protected under s. 7 of the Charter” [46], while in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84, it refused to find that s. 7 required governments to provide welfare.

Now I have argued, here and elsewhere, that the failure to protect property and contract rights has been counter-productive, leaving the marginalized and the poor at the governments’ mercy, even as the well-off can use their political connections to avoid shakedowns. “Social and economic” rights are probably different, because ― as the majority of the Ontario Court of Appeal pointed out in a recent case where housing rights were alleged to be protected by s. 7, Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 ― there are no judicially discoverable or manageable standards for courts to apply in such matters. Be that is it may, it is quite clear that Canadian constitutional law, as it now stands, recognizes no economic rights of any sort ― with one glaring exception.

That exception concerns the economic rights of unionized workers. The Mounted Police majority clearly recognizes ― although it does not quite acknowledge ― that the right to bargain collectively which it reads into s. 2(d) is an economic one. As it puts it,

[i]ndividual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals. [70]

“Workplace goals” here is, quite clearly, a bit of a fig leaf. The judges may not understand the economics, as I’ve argued in my previous post ― they may be ignorant of the fact that nobody in a competitive labour market (or any other competitive market) has much bargaining power, and that employees are not under some special disability. But they surely understand that the “workplace goals” employees pursue are about compensation, whether it takes the form of a higher salary, greater fringe benefits, or even more leisure. So there you have it: employees are entitled to constitutional protection for their ability to get more money out of employers ― by means of cartelizing their output and eliminating competition.

The question is, why them? Why are employees given a constitutional privilege which freelancers, small businessmen or, for that matter, welfare recipients are not? The Court’s assumption seems to be that employees are uniquely vulnerable, but surely they are not more so than the people on welfare. And even businessmen can have a hard time making ends meet, in the face of competition. This, indeed, is their favourite argument for forming cartels of their own. You know the story: competition is too cut-throat, we need to limit the number of companies operating in a market, yada-yada. Let’s license restaurants, prohibit foreign law firms from operating in our jurisdiction, or just divide up the market, stop competing, and make everybody ― except the consumers of course ― happy. What is there, in the Supreme Court’s logic, that would have prevented the confectioners who thought you weren’t paying enough for your chocolate from arguing that they had a constitutional “right to join with others to meet on more equal terms the power and strength of other groups or entities” (Mounted Police [66]) ― such as the consumers? Score one for labour lawyers ― the Bay Street types, presumably, just hadn’t thought of making the argument.

Then again, I suspect that the Supreme Court wouldn’t have gone along with it, coming from a cartel of businesses. What about other forms of associations? Does, say, a religious community have a right to force a government to bargain with it, in good faith, about tax credits? Or do the members of a coalition of taxpayers have a right to strike, constitutionalized in Saskatchewan Federation of Labour ― to stop paying taxes ― as part of an exercise in joining with others to meet on more equal terms the power of the most powerful entity of them all, the government?  Am I being facetious here? Well, yes, somewhat. But really, what does “the right to join with others to meet on more equal terms the power and strength of other groups or entities” mean, as applied to groups other than trade unions?

Unlike the other two aspects of the freedom of association identified in Mounted Police, namely “the right to join with others and form associations; [and] the right to join with others in the pursuit of other constitutional rights,” [66] this “right to join with others to meet on more equal terms the power and strength of other groups or entities” seems to be simply inapplicable to any association other than a trade union. It is not a right in which all citizens can share, but a privilege granted, for reasons unexplained, to a single group in Canadian society. As such, it should not exist.

This unique privilege has a counterpart ― a unique burden imposed on one group only. Generally speaking, the Charter does not apply to private parties. By its own terms, it binds governments and legislatures alone. Yet the invention of a right to collective bargaining imposes a constitutional obligation to engage in it ― on employers. This is done indirectly, to be sure, since strictly speaking, the constitutional duty is that of legislatures to create a labour law regime which, in turn requires employers to bargain collectively. Still, the relationship between the constitutional requirement and the private party who must bear its burden is straightforward, and without obvious parallels in the Charter realm. I suspect that the fact that government ― which is subject to the Charter in all its capacities, including both as regulator and as employer ― is in fact the employer in these cases might have obscured the fact that the Supreme Court’s decisions ended up imposing Charter duties on private parties, but that’s hardly a good excuse for the Court’s muddled thinking. (It does make me wonder whether the Charter ought to apply to the government as an employer at all, but that’s a question for another time.) The Court doesn’t distinguish between the rights of government employees and those of private firms, and the correlative obligations of their respective employers, and there is nothing in its reasons that would support such a distinction.

In short, in addition to being based on economic myth and misconceiving the Court’s role vis-à-vis legislatures, the decisions constitutionalizing labour’s economic rights are out of step with the Court jurisprudence denying such rights to all other Canadians, and that which refuses to impose Charter obligations on private parties. It erects labour as a privileged class in Canadian society, endowed with greater constitutional rights than others. This is wrong. I will consider the options for remedying the situation shortly.