Process and Outcome

Dunmore v Ontario (Attorney-General) has been identified as a demarcation point for the interpretation of freedom of association.1 In overruling the long-established rule from Hersees of Woodstock v Goldstein2 in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd,3 though, the Canadian Supreme Court signalled a willingness to depart from past precedents. Ever since Health Services and Support—Facilities Subsector Bargaining Association v British Columbia, where ‘the concept of freedom of association [was interpreted as including the] notion of a procedural right to collective bargaining’,4 there has been debate regarding the content of the freedom of association pursuant to s 2 (d) of Canada’s Charter of Rights and Freedoms.5 Mounted Police Association of Ontario v Canada (Attorney General),6 the focus here, supplemented the existing content of freedom of association. While Saskatchewan Federation of Labour v Saskatchewan7 remains the headline decision for labour law in 2015, Mounted Police continued the elaboration of freedom of association. Certainly Saskatchewan changed Canadian labour law textbooks: s 2(d) of the Charter gives effect to a right to strike, thereby setting aside the interpretation from 1987 that freedom of association was an individual right, accorded a limited interpretation. Nevertheless, consider the legislation struck down. Through the Public Service Essential Services Act,8 the provincial government granted itself unilateral authority to declare any public sector workers as ‘essential service employees’, prohibiting them from participating in strike action. The Act contained no meaningful mechanism for resolving bargaining impasses.9 Moreover, the identification of essential service employees was even beyond adjudication by a labour relations board. Given the scope of the legislation, surprise would have been slight that such a one-sided statute was found to have violated s 2(d). Instead, Mounted Police provided some further direction as to the content of a ‘meaningful pursuit of workplace goals’. The guidance can be categorised in terms of process and outcome where the former constitutes the content of freedom of association and the latter is viewed as sitting outside the right