United Food and Commercial Workers International Union v. MedReleaf Corp., 2020 ONAFRAAT 8

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, Ontario, N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: UFCW v MedReleaf Phase 2 (RE) UFCW v MedReleaf Phase 2

STATUTE: Agricultural Employees Protection Act, 2002

HEARING DATES: October 17-18, 2019, October 31, 2019 to November 1, 2019, November 6-8, 2019, November 21-22, 2019, and December 17- 18, 2019.

DATE OF DECISION: June 17, 2020

001UFCW16B

NEUTRAL CITATION: 2020 ONAFRAAT 08

IN THE MATTER OF THE AGRICULTURAL EMPLOYEES PROTECTION ACT, 2002

AND IN THE MATTER OF: A Notice of Constitutional Question to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) by United Food and Commercial Workers International Union examining the validity of Sections 2(1) and 5 of the Agricultural Employees Protection Act, 2002.

AND IN THE MATTER OF: Notice of Motion Attorney General of Ontario dated October 7, 2019.

Before: John O’Kane, Vice-Chair; Harold McNeely, Vice-Chair and Jeffrey J. Hewitt, Vice-Chair

Appearances: Micheil M. Russell and Patrick Enright, counsel for the Complainant Richard J. Charney and Rika Sawatsky, counsel for the Respondent Estée Garfin, Otto Ranalli and Jennifer Luong, counsel for the Ministry of the Attorney General for Ontario Tala Khoury and John Craig, counsel for Labour Issues Coordinating Committee

DECISION

PART I — OVERVIEW

1The United Food and Commercial Workers International Union (“UFCW”) together with four individual employees brought a complaint to the Tribunal under Section 11 of the Agricultural Employees Protection Act (“AEPA”) against MedReleaf Corp. (“MedReleaf”).

2The complaint alleged unfair labour practices by MedReleaf, specifically that MedReleaf violated those employees’ rights and protections under Sections 8 to 10 of the AEPA and asserted that Sections 2(1) and 5 of the AEPA violate the Complainant’s associational rights guaranteed under Section 2(d) of the Charter of Rights and Freedoms (“Charter”).

3Since the complaint involved a Charter challenge, the Attorney General for Ontario (“AG”) intervened from the outset of the complaint and, at a later date, the Labour Issues Coordinating Committee (“LICC”) also intervened in the complaint.

4By agreement of the parties, the complaint was bifurcated, dealing in Phase One with the unfair labour practices complaint and in Phase Two with the Charter challenge.

5On August 29, 2018, the Tribunal published its Phase One reasons for decision for dismissing the unfair labour practices complaint. Rather than repeat the findings of fact we made in those reasons for decision, we adopt and incorporate those findings here by reference.

6In this Phase Two decision, we conclude that Sections 2(1) and 5 of the AEPA do not violate the associational rights of the MedReleaf employees as guaranteed by Section 2(d) of the Charter and it therefore follows from that conclusion that the Charter challenge is dismissed.

PART II — PRELIMINARY MOTION DECISION

7At the beginning of what was to be the oral evidentiary portion of the Section 2(d) Charter challenge, the AG moved to strike portions of the affidavit evidence filed by the UFCW on the grounds that the impugned portions of the UFCW’s affidavits contained inadmissible evidence. The AG characterized the impugned portions of the affidavits as containing inadmissible hearsay, irrelevant evidence, legal opinion and sworn arguments.

8In response, the UFCW has conceded that certain portions of its filed affidavits should indeed be withdrawn. Further, UFCW itself moved to strike portions of the affidavit evidence filed by the AG on grounds that the AG’s affidavits contained similar inadmissible evidence.

9After considering the AG’s motion, we accepted UFCW’s concessions and dismissed the motion as it related to the remainder of the UFCW affidavits, with written reasons to follow.

10After hearing the oral reasons, counsel for UFCW withdrew the UFCW motion.

Preliminary Motion Analysis

11The schedule for the hearing of the UFCW’s Section 2(d) Charter challenge had long been agreed to by the parties and was to encompass October 17, 2019 to October 18, 2019, October 31, 2019 to November 1, 2019, November 6, 2019 to November 8, 2019, November 21, 2019 to November 22, 2019, and December 17, 2019 to December 18, 2019.

12Very close to the eve of the start of that hearing, the AG moved to strike portions of affidavit materials that had been delivered many months previously in accordance with a consent schedule of exchanging affidavit evidence.

13The impugned portions of the UFCW’s affidavits have previously been the subject of detailed response affidavits on behalf of the AG. In our view, had the AG been concerned with the content of the affidavit evidence, rather than respond substantively as it did, the better approach would have been to first move to strike the portions of the affidavits. In this context, the late timing of the AG’s motion concerns us.

14The rules of evidence applicable in the law courts in respect of inadmissible hearsay evidence are expressly inapplicable to the Tribunal under the Statutory Powers Procedure Act (“SPPA”).

15As argued by UFCW’s counsel in response to the AG’s motion, many of the issues the AG raises about portions of the UFCW affidavit evidence are also evident in the AG’s affidavit evidence.

16The focal issue on this motion is whether the impugned affidavit evidence is relevant and while the AG’s motion raises arguable doubt as to the relevance of the impugned affidavit evidence, in the interests of procedural fairness and timing that doubt is better resolved by allowing the evidence in and reserving our discretion to accord the evidence appropriate weight.

17The AG’s motion, if granted, would in our view interrupt the agreed-upon hearing schedule and quite likely extend the hearing of the Section 2(d) Charter challenge into 2020. In our view, such a potential delay unnecessarily prejudices the hearing schedule, the parties and delays the administration of justice generally.

18We remain unconvinced that excising the impugned affidavit evidence from the record will create enough efficiencies to outweigh the potential hearing disruption and prejudice.

Preliminary Motion Order

19The Attorney General’s preliminary motion is hereby dismissed. On consent,

a) The UFCW’s preliminary motion is withdrawn; and,

b) Paragraphs 43 to 48 of the March 18, 2019 affidavit of Eric Tucker are hereby withdrawn; and,

c) Paragraphs 6, 8, 96 to 100 of the July 29, 2019 reply affidavit of Eric Tucker are hereby withdrawn.

20The withdrawn affidavit paragraphs shall be redacted from the public record copies of the filed affidavits.

PART III — TRIBUNAL JURISDICTION

21Jurisdiction invokes that we consider the parties, the subject matter and the remedies sought. The alignment of these three elements creates the Tribunal’s jurisdictional foundation. In these circumstances the AEPA identifies three prospective parties: agricultural employees, employers and employees’ associations. The AEPA also sets out the jurisdictional subject matter as the “rights of agricultural employees” as enumerated in Section 1. The remedies jurisdiction is set out in Section 11 of the AEPA, subject to the limitation in Section 17.

22None of the parties before the Tribunal argued that, in these circumstances, the Tribunal lacked the jurisdiction to decide the Charter challenge.

23Central to our analysis in the Charter challenge is the relevant evidentiary matrix which is focused on the MedReleaf workplace in Markham between May 2015 and June 2017 (the “Relevant Period”). Most of the evidence related to the MedReleaf workplace was heard during Phase One. That Phase One evidence was supplemented in Phase Two with the May 30, 2019 affidavit of Igor Gimelshtein and his cross-examination and re-examination on that affidavit. Mr. Gimelshtein was the Chief Financial Officer of MedReleaf between March 23, 2015 and December 10, 2018. No other witness testifying in Phase Two had any direct evidence relevant to staffing and operations at MedReleaf during the Relevant Period.

24In our Phase One decision, we found that a primary driver behind MedReleaf employees seeking representation by the UFCW was that some employee dismissals had generated employee uncertainty about their security of tenure.

25There was no evidence in either Phase One or Phase Two that would inform any fact findings that MedReleaf employees suffered from any economic disadvantage. The evidence about MedReleaf was that most of its workforce of sixty-nine employees were skilled, trained, received good wages, benefits, shares in the corporation and worked in a highly regulated and inspected facility involving the continuous growing and harvesting of medical marijuana. That evidence was neither challenged nor contradicted and we make those findings of fact.

26While there was evidence in Phase Two about the vulnerability of farm workers, particularly those employed under either the Temporary Farm Workers Program (“TFWP”) or the Seasonal Agricultural Workers Program (“SAWP”), there was no evidence that any MedReleaf employee participated in those programs.

27There was evidence about what was described as the “family farm” in Ontario, as well as evidence about the absence of successful agricultural employee representation campaigns in Ontario and the experiences in Ontario and other jurisdictions with a variety of labour relations schemes in the agricultural sector.

28There was also evidence from three witnesses qualified, on consent, to give expert opinion evidence. Largely that expert evidence was contextual and divorced from the facts of the experiences between the UFCW, MedReleaf and the employees at MedReleaf. That expert evidence was adduced to provide the Tribunal with context about the foundational legislative and societal evidence that each party considered relevant to the Section 2(d) Charter challenge.

29Some of the expert evidence “coloured outside the lines” of the parameters for opinion evidence, sometimes straying into opinions about the constitutionality of the very legislation we are called on to determine, and occasionally straying into opinions outside the disciplines in which the experts were qualified. None of the experts testifying had any direct knowledge or any opinions regarding the MedReleaf workplace. These factors implicated our consideration of that evidence and we gave that evidence the appropriate weight.

30We do not have jurisdiction over farm workers as there are no farm workers before the Tribunal; nor over those working under the TFWP or the SAWP as no such workers are before the Tribunal; nor over family farms because no such farms are before the Tribunal; nor regarding unsuccessful representation campaigns at other agricultural operations in Ontario, as no complaint about those campaigns are before the Tribunal. As a result, we accept and agree with the MedReleaf submission that the UFCW Charter challenge is limited “temporally and geographically” to the experience at MedReleaf as discussed.

31Accordingly, we make no substantive findings of fact flowing from the evidence that was not specific to MedReleaf and the rights of the MedReleaf employees, and our jurisdiction is limited to such.

PART IV — THE LAW & LABOUR RELATIONS

32For most of the Ontario private sector, labour relations are governed by the Labour Relations Act (“LRA”), which incorporates what is commonly called a “Wagner Act” model of labour relations whereby employees may organize into a bargaining unit represented by a single trade union. Under the Wagner Act model, the representative trade union is selected by a majority vote of employees and thereafter the union enjoys status as the exclusive bargaining agent in the workplace.

33The LRA promotes collective bargaining for terms of employment between the employer and employees and creates mechanisms to address both employer-employee disputes and collective bargaining impasses. These “last resort” mechanisms are the strike by employees and the lockout by employers.

34Certain employees are specifically excluded from application of the LRA, including an “employee” who is defined in the AEPA as being one who is employed in agriculture. As a result, in previous proceedings under the LRA involving the Complainant and MedReleaf, the Ontario Labour Relations Board (“OLRB”) determined it did not have jurisdiction over the issues because MedReleaf’s employees were excluded from the LRA and included under the AEPA.

35The AEPA created a labour relations regime unique to the Ontario agricultural sector. The AEPA was the Ontario legislature’s response to the Supreme Court of Canada’s decision in Dunmore v. Ontario (Attorney General), 2001 SCC 94. That decision confirmed that excluding farm workers from Labour Relations Act, 1995 violated the associational rights of farm workers guaranteed under Section 2(d) of the Charter.

36The AEPA applies to any employee in agriculture, which industry is broadly defined to include the growing and cultivating of agricultural commodities. As MedReleaf grows and harvests medical marijuana, and as found in our Phase One decision, MedReleaf employees are employed in agriculture and therefore the AEPA is the governing labour relations regime.

The Supreme Court of Canada’s Decisions

37We describe the issue in Phase Two by borrowing from the Supreme Court of Canada’s reasons for decision in Ontario (Attorney General) v. Fraser [2011] 2 S.C.R., in which the Court considered a Charter challenge to the AEPA.

The issue is whether the failure of the Ontario government to enact a positive statutory framework for agricultural modelled after the Ontario LRA violates s. 2(d) of the Charter in a manner that cannot be justified by s. 1.

38The UFCW argues there are serious reasons to doubt that Fraser remains good law and that the test for a Section 2(d) Charter violation has been altered since Fraser was decided. A key feature of the UFCW argument focuses on the AEPA not providing a meaningful alternative to the Wagner Act model.

39In addition, the UFCW argues that the Court in Fraser never considered that the AEPA excluded strike activity for agricultural workers and that, since the decision in Fraser, the right to strike has been recognized as a constitutional right, thereby bringing Fraser’s precedential value into doubt.

The Fraser Case

40Our review of the jurisprudence begins with the Fraser case, which considered whether the AEPA was constitutionally valid. The Supreme Court of Canada characterized the AEPA as Ontario’s “latest attempt to frame a separate labour relations regime for the farming sector”. The Supreme Court concluded that “the AEPA, properly interpreted, meets these requirements, and is not unconstitutional”. The requirements the Court alluded to a process by which employees or employee associations could make employment related representations to employers and an obligation on employers to consider and discuss such representations in good faith.

41The agricultural workers involved in Fraser were employed at a large industrial-type mushroom farm and at an industrial greenhouse. The employees at both workplaces engaged the UFCW to represent them and bargain with their respective employers. The employer at the mushroom farm refused to recognize the UFCW as the bargaining agent for its employees and did not respond to UFCW’s attempts to engage the employer to begin negotiations toward a first contract. The employer at the greenhouse expressed doubt that UFCW could be an employee association under the AEPA but allowed the union to make a short presentation to which the employer responded claiming the employer did not have to bargain with the union. The employer also did not respond to further written overtures from the UFCW about employment terms at the workplace.

42The Supreme Court in Fraser summarized the respondent’s (the employees and the UFCW) access to the AEPA remedies at paragraph 12:

The respondents did not attempt to pursue remedies under the AEPA, Specifically, no recourse was made to the Tribunal set up under the Act to deal with complaints. Rather, the respondent sought a declaration that s. 3(.1) of the LRA, which provides that the LRA does not apply to farm workers, and that the AEPA as a whole were unconstitutional.

43The Court’s reasons were developed in the context of the Ontario Court of Appeal’s determination that the AEPA was unconstitutional because it did not provide three minimum protections animating the right to meaningful collective bargaining: “(1) a statutory duty to bargain in good faith; (2) statutory recognition of the principles of exclusivity and majoritarianism; and (3) a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements”.

44The UFCW’s arguments before us included the assertion that the AEPA failed to provide agricultural workers with those same minimum protections. We note that the complaint before us did not encompass a factual matrix regarding agricultural workers generally but rather the workers at MedReleaf alone.

45The Supreme Court overruled the Court of Appeal’s decision and clarified in its reasons that its role was not to dictate in advance any particular labour relations model as that role was reserved to the legislature.

46While the principle of stare decisis does not apply in the sense that the Tribunal is not bound by its own previous decisions on similar cases, it does apply where a court has determined a statutory provision. The Tribunal is bound under that principle to apply the court’s interpretation. Therefore, at least regarding the authority of Fraser, we begin at a position that the AEPA is presumptively valid and the Tribunal is bound by the precedent established in Fraser under the doctrine of stare decisis.

The Mounted Police[^1] Case

47Four years after the Supreme Court released its decision in Fraser, it considered the constitutional validity of federal legislation governing the labour relations of the RCMP. The Court prefaced its analysis as a review and interpretation of Section 2(d) Charter rights and clarifying the “scope of the constitutional protection of collective bargaining rights” recognized in Fraser.

48The context of Mounted Police was that the RCMP had for decades, and unlike most members of the federal public service, been legislatively excluded from joining a union or from collectively bargaining. The labour relations regime for the RCMP excluded them from the definition of “employee” that governed most members of the federal public service and featured members communicating workplace concerns through a staff relations program; pay and benefit concerns through a pay council process; and, legal assistance for employment related issues. The appeal challenged the constitutional validity of that federal scheme.

49The Supreme Court determined that the federal legislation denied the RCMP the choice of representation and independence from management to identify and advance their workplace concerns and that the impugned provision in the legislation contradicted Section 2(d) of the Charter and was not a justified infringement under Section 1 of the Charter. The Court also concluded that excluding the RCMP from collective bargaining through the definition of “employee” in related legislation was also an unjustified infringement of Section 2(d) of the Charter.

50The Court reviewed the structure and operation of the Staff Relations Representative Program (SRRP) and concluded there was no choice and no independence since that employee representative was legislatively mandated and because the SRRP was part of management. Those factors proved to be substantial interference with the associational freedoms of the RCMP and therefore constitutionally invalid.

51The Court also considered the exclusion of RCMP from the definition of “employee” in related impugned legislation. The Court concluded that the related legislative measures, taken together, substantially interfered with the RCMP’s freedom of association rights.

52In making these determinations, the Court was careful to reiterate that their conclusion did not require Parliament to include the RCMP in the labour relations scheme that covered the majority of the public sector employees.

As discussed above, s. 2(d) of the Charter does not mandate a particular model of labour relations. Our conclusion with respect to the constitutionality of the PSLRA exclusion means only that Parliament must not substantially interfere with the right of RCMP members to a meaningful process of collective bargaining …. For example, it remains open to the federal government to explore other collective bargaining processes that could better address the specific context in which members of the RCMP discharge their duties.

53The Court clarified the constitutional protection of collective bargaining rights recognized in Fraser.

54At paragraph 45, the Court reaffirmed that Section 2(d) of the Charter “confers the right to a process of collective bargaining, understood as meaningful association in pursuit of workplace goals” including the right of employees joining together and making collective representations to the employer, who must consider the representations in good faith.

55At paragraph 67, the Court affirmed the central holding from Fraser that using a purposive approach to interpreting the Section 2(d) right to meaningfully associate to pursue collective workplace goals including the right to collective bargaining means the guaranteed right to a “process”, not any particular labour relations model or outcome.

56At paragraph 73, the Court clarified collective bargaining as a core right versus a derivative right guaranteed under the Charter and the Attorney General’s misunderstanding of what the Court in Fraser meant about “effectively impossible” workplace association.

57At paragraph 75, the Court sharpened the Fraser focus noting that its previous comments regarding “effectively impossible” were not defining the legal test for infringement of a Section 2(d) right but the effect of the legislation. The legal test for breach of the right of freedom of association is “substantial interference”.

58Therefore, to this point in our analysis of the developing jurisprudence, Fraser remains good and controlling law, binding on this Tribunal, subject to the clarifications from Mounted Police:

To recap, s. 2(d) protects against substantial interference with the right to a meaningful process of collective bargaining. Historically, workers have associated in order “to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”, namely, their employers: Alberta Reference, at p. 366. The guarantee entrenched in s. 2(d) of the Charter cannot be indifferent to power imbalances in the labour relations context. To sanction such indifference would be to ignore “the historical origins of the concepts enshrined” in s. 2(d): Big M Drug Mart, at p. 344. It follows that the right to a meaningful process of collective bargaining will not be satisfied by a legislative scheme that strips employees of adequate protections in their interactions with management so as to substantially interfere with their ability to meaningfully engage in collective negotiations.

The SFL[^2] Case

59Three months after releasing its decision in Mounted Police, the Supreme Court of Canada released Saskatchewan Federation of Labour (SFL), a challenge to a provincial legislative scheme containing an outright ban on the right to strike for public sector employees designated as “essential”. The Court concluded that the right to strike is an indispensable element of the right to meaningful collective bargaining and that where “essential” public service collective bargaining reaches an impasse, legislation banning striking, without providing a less disruptive alternate mechanism to bridge the impasse, will be unconstitutional.

60After a detailed historical analysis of the strike in Canadian labour relations and the status of the strike generally in many modern democracies, the Court at paragraph 75 observed:

This historical, international and jurisprudential landscape suggests compellingly to me that s. 2(d) has arrived at the destination sought by Dickson, C.J. in the Alberta Reference, namely, the conclusion that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. In this case, the suppression of the right to strike amounts to a substantial interference with the right to a meaningful process of collective bargaining.

61After determining the impugned legislation banning public sector strikes infringed the Section 2(d) Charter associational rights, the Court’s Section 1 justification analysis focused on the absence of any statutory alternative dispute resolution mechanism to conclude the legislation banning strikes could not be reasonably justified.

62At this point in our analysis of the developing jurisprudence, Fraser remains good and controlling law, binding on this Tribunal, subject to the clarifications from Mounted Police and SFL.

The BC Teachers Federation[^3] case

63In 2016, the Supreme Court released brief reasons substantially adopting the dissenting reasons of Justice Donald of the British Columbia Court of Appeal in determining that the impugned legislation violated the Section 2(d) Charter rights of teachers in the province.

64Justice Donald’s reasons relied on the Supreme Court’s new labour relations decision trilogy of Fraser, Mounted Police and SFL.

Stare Decisis and The New Labour Relations Trilogy Since Fraser

65The Supreme Court of Canada has articulated principles to guide when and how decision-makers can depart from binding pronouncements. Those principles were recently reiterated in R. v. Comeau, 2018 SCC 15. The overarching principle is “vertical stare decisis” (inferior decision-makers are bound by the decisions of superior decision-makers). For the Tribunal to deviate from the controlling authority of Fraser that the AEPA is constitutionally valid, the UFCW must convince us there has been some seismic shift in the law creating new legal issues or new evidence that alters how decision-makers understand the legal issues.

66The new trilogy in labour relations jurisprudence does not represent a seismic shift in the law creating new legal issues. Those three cases reflect consistent serial affirmations of the continuing authority of Fraser.

67The Supreme Court informs us that the evidentiary exception is narrow and not just any evidence will suffice; it must be evidence of significant evolution in the foundational legislative and social facts. It is not a question of disagreement or interpretation.

68The evidence before us in the record, and our findings of fact from that evidentiary record, do not satisfy us of significant changes in the foundational legislative and social facts from the controlling jurisprudence.

69Dunmore can be considered the seminal case in developing the current relevant jurisprudence and part of the evidence was summarized at paragraph 5 of the decision. “Moreover, the affidavit evidence in this case ‘presents in stark contrast two conflicting views of an appropriate labour relations regime for agricultural workers in Ontario’ …”. That passage aptly describes the polar alignment of certain of the views in the affidavit evidence, and really the parties, in this case.

70By the courts in both Dunmore and Fraser, agricultural workers in Ontario had, since at least 1943, been excluded from labour relations legislation that covered most other private sector workers except for the brief period between the enactment and eventual repeal of the Agricultural Labour Relations Act, 1994 (“ALRA”).

71In the Fraser decision at paragraph 13, at the trial level of Dunmore, Justice Sharpe found that agricultural workers “are ‘poorly paid, face difficult working conditions, have low levels of skills and education, low status and limited employment mobility’.” Those factual findings from Dunmore were adopted by the trial judge in Fraser.

72The Phase Two affidavit evidence of Kevin Shimmin, a National Representative for the UFCW, attested to the vulnerability of seasonal farm workers from other countries working in Canada under the SAWP. Mr. Shimmin’s evidence (paragraphs 26-36) was largely anecdotal and was not accompanied or supported by the evidence of any agricultural workers.

73The affidavit evidence of Derek Johnstone, Special Assistant to the President of the UFCW, appended public interest group reports spanning 2001 to 2015 that described the working conditions of migrant farm works. In addition, Mr. Johnstone testified about the UFCW’s education, advocacy and lobbying efforts to the government about the exploitation and vulnerability of migrant farm workers under both the SAWP and the TFWP.

74The descriptions of the working conditions of migrant farm workers from Mr. Shimmin and Mr. Johnstone parallel the findings made by the courts in Dunmore and Fraser with added challenges of language and immigration issues. A review of the reports cited and the UFCW’s education, advocacy and lobbying efforts reveals they span a temporal arc from Dunmore to Fraser to this case and support our conclusion that, regarding farm workers generally and migrant farm workers, the foundational legislative and social facts have not changed significantly.

A Positive Statutory Framework Modelled on the LRA

75The LRA is an example of the Wagner Act model expressed in a statutory framework governing private sector labour relations in Ontario. The essence of the UFCW arguments is that the failure of the AEPA to use some close proxy of that LRA model that encompasses a statutorily job protected right to strike or a statutorily enshrined alternate mechanism which might include features such as binding arbitration or final offer arbitration or interest arbitration renders the AEPA unworkable and unconstitutional.

76A core feature of the Wagner Act model is the ability of workers to collectively withdraw services from their employer to exert economic pressure to advance collective bargaining. Under the LRA expression of the Wagner Act model, employees who do collectively withdraw services (strike), have a limited statutory right to reinstatement post-strike.

77Both the UFCW and the AG provided evidence from academics about employment and labour law, labour policy and labour relations in Ontario and elsewhere in Canada and the world to frame a broader context for the Tribunal’s considering Section 2(d) Charter arguments.

78Eric Tucker, a law school professor and author qualified as an expert in labour law and employment law, testified on behalf of UFCW. Certain of Professor Tucker’s evidence was problematic. The hallmarks of expert evidence are that it is objective, fair and non-partisan and is confined to the expert’s specific discipline. The problems associated with Professor Tucker’s expert evidence are, for the most part, violations of those hallmarks and were appropriately summarized in Part II, D of the AG’s Factum.

79Richard Chaykowski, a university professor and author qualified as an expert in labour economics, industrial and labour relations and labour policy testified on behalf of the AG. We found no problems with Professor Chaykowski’s evidence similar to those that we found with Professor Tucker’s evidence. Professor Chaykowski “stayed within the lane” of his expertise and did not advocate partisan views.

80In resolving any divergence in expert evidence from Professor Tucker and Professor Chaykowski, we would resolve that divergence in favour of accepting Professor Chaykowski’s evidence.

81There was, at least in one relevant area, an alignment of views of Professor Tucker and Professor Chaykowski. Professor Tucker described the Wagner Act model as “a failing model in our current economy” and that “I don’t think it’s the optimal model for farm workers either”. Further, Professor Tucker was of the opinion that there were “all kinds of models” that “would, in my view, be much more effective than the Wagner Act model”.

82Professor Tucker’s authorship included a 2014 paper titled “Can Worker Voice Strike Back” in which he posited about the future of strikes and that unions were “part of the problem” because they had been shaped by the legal framework (the Wagner Act model) in which they operate. His paper explained that “they” (unions) often become narrowly focused on pursuing the interests of their members through collective bargaining and developed a repertoire of actions, permitted within the legal framework, to advance those interests. Reforming the legal framework and expanding the repertoire while keeping the same narrow focus is unlikely to lead to much change:

…. Perhaps what is needed is a more fundamental shift that would see unions trying to rebuild as working-class movements more broadly focused on organizing and advancing the interests of working people outside the framework of contract unionism. Notable in this regard have been one-day strikes by Walmart and fast-food workers demanding higher wages, even though there is no prospect that they will be organized into dues paying bargaining units.

83On cross-examination, Professor Tucker confirmed his writing and confirmed to the truth of his views.

84Professor Chaykowski testified about several labour relations models used in industrialized nations around the globe other than the Wagner Act model. During cross-examination, he testified about scholarly views in industrial relations expressing the need to look at alternatives to the Wagner Act model because “trying to force that model on certain industries is not working and we need alternatives” and “…I think that’s widely acknowledged and recognized in all of the articles that we’ve been talking about this morning. It’s evident in all of those articles. I don’t think there’s any debate about the fact that the Wagner Act model is not serving private-sector workers. It’s just not.” In testimony that aligned with Professor Tucker’s views about the Wagner Act model and today’s economy he testified, “…what I’m saying is that flies in the face of the reality of experience of the Wagner Act model in the new economy. It’s not working in more and more industries.”

85While our decision in Phase One stands on its own without the need for further explanation, we take this opportunity to clarify our comments on collective bargaining contained therein given that, in Phase Two, UFCW relies on our wording, found at page 16 of our decision, that “collective bargaining does not apply under the AEPA”. UFCW does so to support its position that the AEPA does not provide “a meaningful process for workers to engage in collective bargaining.” Isolating those words from the balance of the discussion contained in the Phase One decision removes the context in which those words were written. There was a thorough analysis in that Phase One decision that exclusive collective bargaining was not the model utilized by the AEPA. The portion of the paragraph immediately following the excerpt upon which UFCW relies discusses non-exclusive bargaining and that is the context in which the words “collective bargaining does not apply under the AEPA” must be read. It is the Wagner Act model that does not apply.

86While that alignment of views of those two expert witnesses does not determine the issue before the Tribunal, it does provide some useful academic context within which we consider the UFCW’s arguments that the AEPA needs to have greater statutory protections for agricultural workers to be constitutionally valid.

87We received some “farm” specific evidence from three farm owner representatives called on behalf of the intervenor LICC. Ken Forth is a farm owner of a broccoli farm with a work force primarily comprised of part-time seasonal employees employed under the SAWP and producing 80,000 crates of broccoli annually from 250 acres of farmland. Jan Vanderhout is a farm owner of a greenhouse cucumber farm with a mix of full-time and part-time employees which includes employees under both the SAWP and the TFWP, depending on the season and producing about 16 million seedless cucumbers per year from greenhouses on about 536 acres of farmland. Amy Cronin is a farm owner of a hog farming operation on just over 900 acres of farmland with about 6,700 sow hogs and most of her employees come via the TFWP.

88That broader contextual evidence specific to those three farming operations represented a minute fraction of the agricultural industry in Ontario but that evidence was more or less aligned about the withdrawal of services by their employees creating economic havoc in those farming operations due to factors such as the health, safety and welfare of livestock and the perishability of the crops and the need for ongoing crop maintenance. All three witnesses also testified about their individual experiences with labour shortages in the farm sector, which underscored their reality that in the face of a withdrawal of services by their employees, there was no alternative source of reliable labour.

89The contextual evidence about labour relations and the impact of the withdrawal of services specific to the three farms does not determine the issue before the Tribunal. However, it does provide some useful real-world context within which we consider the UFCW’s arguments that the AEPA ought to have greater statutory protections for agricultural workers to be constitutionally valid.

90Portia MacDonald-Dewhirst testified for the AG and was qualified to give expert evidence about the agricultural labour market in Ontario and Canada. Her evidence was there were labour shortages caused by increasing demands in the province for labour in the agricultural sector and the decreasing supply of labour in that same sector.

91Like the other contextual evidence, the evidence about the general state of the agricultural labour market in Ontario does not determine the issue before the Tribunal. However, it too provides some useful context within which we consider the UFCW’s arguments that the AEPA needs to have greater statutory protections for agricultural workers to be constitutionally valid.

92The authority of Fraser, as clarified by Mounted Police, confirms a constitutional right to a process for some form of collective bargaining (but not necessarily a Wagner Act model) and a right to withdraw services (but not necessarily a strike), each adjunct animating the Section 2(d) Charter right of freedom of association. However, that authority does not mean that every labour relations statute that does not currently contain a statutory right to a Wagner Act model of collective bargaining or to strike is rendered unconstitutional as violating the right of freedom of association under Section 2(d) of the Charter. Rather, that authority requires that we “read-in” where appropriate those constitutionally recognized rights in any such labour relations legislation.

93As a starting point, we are of the opinion that Section 5(a) of the AEPA statutorily provides for a form of collective bargaining in that it allows an employee’s association to make representations respecting the terms and conditions of employment of one or more of its members who are employed by an employer. While it is not the exclusive Wagner Act model of collective bargaining, it does allow for the collective bargaining of two or more employees if they so wish.

94The authority of Fraser, as clarified by SFL, confirms the unconstitutionality of a labour relations scheme that bans strikes without providing a statutory alternate dispute resolution process. Only when a labour relations legislative regime contains an outright ban on strikes without providing an alternative statutory dispute resolution mechanism would such a regime be unconstitutional as violating the Section 2(d) Charter freedom of association right.

95The AEPA does not ban strikes. And while the AEPA is silent about the right to strike, such silence does not undermine its constitutional validity. The AEPA does not use the “legal framework” of the labour relations regime of the LRA, to borrow Professor Tucker’s description, nor does it have to.

96Absent any AEPA prohibition on striking, MedReleaf’s employees had the freedom to withdraw their services to exert economic leverage on their employer in negotiations over employment terms (collective bargaining). UFCW’s counsel characterized that freedom as the right to collectively quit their employment since the AEPA contains no statutory job protection for striking employees akin to that of the LRA.

97However, we find no support in the authority of Fraser, Mounted Police or SFL for the proposition that a labour relations regime must contain statutory job protections for employees exercising their right to strike. If such statutory job protections are a constitutional right, it will be for the Supreme Court of Canada to determine and not this Tribunal.

98There was no evidence that, during the relevant period, the MedReleaf employees sought to withdraw their services to advance any workplace concerns. Similarly, regarding the broader contextual evidence described above, there was no instance called to our attention of any Ontario farm workers seeking to withdraw their services to advance workplace concerns.

99Mr. Gimelshtein’s Phase Two evidence on behalf of MedReleaf reiterated the sensitive nature of the marijuana crop to light, temperature, nutrition, trimming, disease, harvesting and drying and the strict federal regulatory environment that required specially vetted and approved employees⁴ always present in the cannabis production rooms. The following cross-examination exchange from his testimony is apposite:

Q. Is all of your ARPICs died one morning – all of them, all died, no ARPICs – would that effectively shut your production down?

A. That would – that would mean I was dead as well, and yes, it would certainly shut it down.

Q. You were actually on vacation anyway, and you’re fine. Production was shut down. Okay.

A. In fact, I would even take it one step further. You would not need all of the ARPICs to die in order to shut down our production. A small subset would be able to stifle our production dramatically, and that’s why we had to treat them and – with respect and hold these employees in the highest regard because ultimately, they might not have been executives of the company, but they held a significant power within the company.

Q. Okay. So from MedReleaf’s perspective, it’s very preferable to operate under a statute that doesn’t give the employees a right to strike?

A. What I – they wouldn’t need a right to strike because if they were to walk out of the facility, we wouldn’t be able to run.

100While that exchange concerned a hypothetical scenario, it underscores the inference we draw at this point based on the MedReleaf findings from our Phase One decision and the MedReleaf evidence in Phase Two that MedReleaf employees, through the threat of or actual withdrawal of services, have significant economic leverage with their employer arising from that agricultural crop and the limited availability of a pool of readily trained replacement employees that could be hired in a timely fashion. We draw that inference and note that economic leverage exists absent any express statutory right of reinstatement following the withdrawal of services (we have intentionally used the word “express” at this time).

101In the Phase One decision we reviewed the evidence of extensive “back and forth” communications between MedReleaf and UFCW between January 2016 and June 2017 over representational status and about terms of employment that ultimately reached an impasse. Our Phase One decision characterization of that impasse was that UFCW’s dogmatism regarding using traditional LRA methods, “derailed the process required by Section 5 of the AEPA”.

102We observe here that the UFCW’s perspective in that regard has been shaped into a “narrow focus”, again borrowing from Professor Tucker, by that LRA legal framework and a “repertoire of action” that is informed by traditional labour relations based on the Wagner model.

103In the same vein of our Phase One decision characterization, we observe that having reached an impasse with MedReleaf, largely due to its own dogmatism, the UFCW and the MedReleaf employees did not seek to engage MedReleaf in mediation, arbitration or threaten withdrawal of services. In that respect, there is no evidentiary record upon which we can decide.

104As in Fraser, the full breadth of the flexibility the AEPA affords employees and employee associations has not been explored in this case. Similarly, the full extent of the Tribunal’s jurisdiction cannot yet be explored and it is premature to do so without the necessary factual context.

105The Tribunal’s express jurisdiction contained in Section 11 of the AEPA is set out below with our bold emphasis added:

11(1) An employee, an employees’ association, an employer, an employers’ organization or any other person or entity directly involved in an activity related to an exercise of a right under this Act may file a written complaint with the Tribunal alleging that there has been a contravention of this Act.

106Faced with a constitutionalized right to non-exclusive collective bargaining (which is also, in this case, statutory) and to withdraw services as recognized by the Supreme Court of Canada and our reading of those rights into the AEPA where necessary, it is arguable and an open question for determination by another panel of this Tribunal in an appropriate case whether firstly the union’s and/or the employer’s failure to take proactive steps after reaching negotiating impasse or secondly job action against employees exercising their right to withdraw services is the subject of a complaint that would engage the Tribunal’s remedies under Section 11(6) of the AEPA, which includes the power to order parties to cease doing the act complained of or to rectify the act complained of and ordering employee reinstatement and compensation.

107The purpose section of the AEPA contains express statutory recognition of the objective to protect employee rights within the unique context of agriculture. The evidence, both specific to MedReleaf and the broader contextual evidence, only reinforced the unique characteristics of agriculture well understood by this Tribunal. Unlike the labour relations regime of the LRA that creates a “one-size fits all” paradigm, the AEPA creates a labour relations regime predicated on flexibility to respond to the unique labour relations circumstances at small farms, big farms, family owner farms, industrial farms, and a non-traditional agricultural enterprises such as MedReleaf, operating within a factory like building in an industrial/commercial neighborhood in Markham.

108As the Supreme Court of Canada observed in Fraser, and equally apposite here, after limited efforts to use the protections of the AEPA, the UFCW mounted this constitutional challenge without fully engaging or testing those protections. It was premature to do so then, just as it is premature to do so now.

UFCW’s Efforts to Undermine the AEPA

109The UFCW has steadfastly refused to embrace the AEPA’s statutory framework for the protection of agricultural workers and in turn, with cart-before-the horse logic, condemns the AEPA for being a broken model that has failed those workers. This approach is most evident in its website that provides a “History Timeline” of “Agricultural Workers in Canada.”⁵ In its review of the historic statutory approach, the UFCW downplays and denigrates the AEPA for its failure to provide for collective bargaining – being the only model the UFCW seems to embrace, despite the existence of other bargaining models. The UFCW writes that agricultural workers “ability to organize is hobbled by provincial legislation,” and that it is the UFCW’s “experience in Ontario, that the vulnerability of both domestic and migrant workers to employer abuse is directly reinforced by their inability to organize and compel employers to collectively bargain in good faith.”

110Further, the UFCW website states that,

The AEPA does not provide agricultural workers with collective bargaining rights enjoyed by workers under the Labour Relations Act. In particular, employers of agricultural workers are not under a duty to recognize unions as the workers’ exclusive bargaining agent, or to bargain in good faith with unions that enjoy majority support among their employees.

111The UFCW concludes that the AEPA “has proven insufficient in upholding the labour rights of agricultural workers in Ontario,” is “not worth using,” “does not work,” and “has proven insufficient in upholding the labour rights of agricultural workers in Ontario.”

112It is this singular focus of the UFCW on the Wagner Act model of collective bargaining that is the UFCW’s downfall, not the AEPA’s. When UFCW states, again on its website, that “not one group of Ontario agricultural works has ever been able to organize or bargain collectively under the AEPA,” such a statement is inherently true as the AEPA admittedly does not provide for traditional collective bargaining. However, it is the UFCW that itself has sabotaged any potential effectiveness of the processes provided by the AEPA. Just as it did with MedReleaf (see Phase One Decision), it has only tried to organize agricultural workers under the LRA and the Canada Labour Code, both of which utilize a Wagner Act collective bargaining model. The UFCW’s witnesses (both Shimmin and Johnstone) could not identify any representational activity that the UFCW has undertaken under the AEPA, other than those following a Wagner Act collective bargaining model. Nor could they identify any time workers were advised of their actual rights under the AEPA, as opposed to being misled (such as by its website) about any such rights.

113As stated above, the Tribunal concludes that, just as in Fraser, the protections of the AEPA simply have never been engaged and therefore never tested. Despite its self-promotion as being the “primary advocate for domestic and migrant agricultural workers,”⁶ the UFCW has failed to look outside the traditional Wagner Act collective bargaining box and embrace alternative models to represent agricultural workers who desire such assistance.

PART V — THE CHARTER ANALYSIS

114As stated previously, it is our opinion that Section 5(1) of the AEPA provides a form of non-exclusive collective bargaining as it allows for the collective representation of more than one employee of any given employer. However, for there to be a breach of Section 2(d) of the Charter, the AEPA must not provide a meaningful form of collective bargaining. Therefore, UFCW must prove that the AEPA substantially interferes with a meaningful process of collective bargaining; “substantial interference” remains the legal test for a Section 2(d) breach.

115As discussed, the weight of binding authority informs us that elements of a meaningful process of collective bargaining include employee choice and independence of representation/collectivism; good faith duties; and employee power in dealing with the employer or influencing employment conditions. We will review each element in turn to explain why we find that UFCW has failed to prove that the AEPA breaches of Section 2(d) of the Charter.

Choice and Independence

116The academic evidence of representation in labour relations globally satisfies us that choice and independence in representation comes in a variety of models that include the Wagner Act majoritarian exclusivity and social partnership, sectoral bargaining, centralized awards, enterprise unionism and voluntarism.

117As the Court in Mounted Police confirmed, “the Wagner Act model, however, is not the only model capable of accommodating choice and independence that ensures meaningful collective bargaining”.

118The AEPA contains no limitations on an “employees’ association”. There are no limitations in size or structure or composition. The only requirement of the AEPA is that the membership be of agricultural employees and that the association be formed for the purposes of those agricultural employees “acting in concert”.

119In our view, that statutory definition of an “employees’ association” could not define a broader degree of representational choice for employees.

120The Phase One evidence reinforced for us that several MedReleaf employees chose the UFCW as their representative to make representations about employment conditions. Unlike under the LRA, the MedReleaf employees were entitled under the AEPA to that representational choice regardless of the percentage level of employees choosing the UFCW.

121The AEPA definitions of “employee”, “employees’ association”, and “employer” animate the independence of employees’ representational choices from the employer. Section 8 of the AEPA further animates the principle of independence by expressly prohibiting employers or their proxies from interfering with employees’ representational choices. Section 11 of the AEPA establish a process for addressing complaints that include where an employer interferes with employee’s representational choices. These legislative protections reinforce the independence of employee associations from the employer.

122There was no evidence in either Phase One or Phase Two that UFCW’s representation of those MedReleaf employees was not independent of MedReleaf management.

Good Faith

123The weight of binding authority recognizes that employers and employees must act in good faith toward each other regarding bargaining about employment conditions but there is no constitutional imprimatur requiring an express statutory duty of good faith bargaining.

124As Fraser directed, Section 5 of the AEPA requires employers to consider representations from employee associations in good faith and that satisfies the constitutional good faith principle embodied in Section 2(d) of the Charter. That direction has not been diminished or altered by the jurisprudence since Fraser.

125As noted in our Phase One decision about the duty imposed by Section 5 of the AEPA, good faith requires that the “parties meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other; an employer must consider the association’s representations with an open mind.”

126In our view, Section 5 of the AEPA and the implicit duty of good faith in bargaining between agricultural employees and employers embody the constitutional principle of good faith reflected in Section 2(d) Charter associational rights.

127UFCW points to the absence of any evidence of successful collective agreements under the AEPA as supporting its argument that good faith negotiations are not occurring and that the underlying reason for the absence of such evidence is the failure of the AEPA. We observe that no evidence was adduced within the agricultural sector in Ontario to determine the success or failure of achieving collective agreements under the AEPA.

128There was anecdotal evidence in Phase Two that representations by the UFCW on behalf of employees at an Ontario poultry farm (Premier Family Farms) did not result in a collective agreement. That evidence suggested that UFCW and the employer reached a bargaining impasse. However, there was no evidence that either UFCW or the employer sought to engage the complaint process under the AEPA.

129We know that no collective agreement was achieved by the UFCW on behalf of the MedReleaf employees that it represented but that lack of success was due not to a failure of the AEPA; it was due to the UFCW’s intransigence.

130Considering the anecdotal evidence of the Premier Farms circumstance and the Phase One evidence about the MedReleaf circumstance, we can conclude that, in those two fact situations, no collective agreements were achieved. However, the duty of good faith implicit in Section 2(d) Charter associational right does not guarantee any particular bargaining outcome, including a successful collective agreement.

131Professor Tucker’s cross-examination evidence acknowledged an anecdote from North Carolina where a collective agreement was negotiated involving 8,500 Mexican migrant agricultural workers across 1,000 farms where there was no statutory framework for collective bargaining. While anecdotal in nature, we note that evidence demonstrates that employees can negotiate and influence employment conditions outside a traditional “statutory” Wagner Act model.

Employee Power

132The weight of binding authority informs us of the traditional economic power balance that favours employers is addressed by employees’ ability to “meet on more equal terms” and the ultimate equalizer is the ability to participate in “collective withdrawal of services for the purpose of pursuing the terms and conditions of employment”.

133As discussed in detail in SFL, the strike or collective withdrawal of services by employees has a long common law traditional foundation that pre-dates statutory schemes guaranteeing a right to strike.

134While the decision in SFL confirmed that an express statutory prohibition on striking runs afoul the Section 2(d) Charter rights, the AEPA does not prohibit or preclude employees from exercising their common law freedom to collectively withdraw services from their employer in pursuit of negotiating employment terms and conditions.

135In support of its claim that agricultural employees under the AEPA have no power, UFCW argues that the common law freedom to collectively withdraw employment services amounts to nothing more than the collective right to “quit” employment. In advancing that argument, UFCW seeks to constitutionalize reinstatement protections for agricultural workers. We do not read the weight of binding authority as having established that protection.

136As previously discussed, the direct evidence about the MedReleaf workplace and the contextual evidence from the farm owner representatives about the consequences of employees collectively withdrawing services satisfies us that those employees could exercise significant economic power in negotiating employment terms and conditions and nothing in the AEPA diminishes that economic power.

Section 1 Analysis

137Having concluded that the Complainant has not proven a breach of their Section 2 (d) associational rights, there is no need for us to engage in a Section 1 analysis.

Order of the Tribunal

The Tribunal Orders:

1. The Complainant’s Constitutional challenge is hereby dismissed.

Footnotes

1. 4“Responsible Person in Charge (RPIC)” and “Alternative Responsible Person in Charge (ARPIC)”
2. 5A copy of the relevant pages from the UFCW’s website was made evidence at the Phase Two Hearing. Further, the Tribunal notes that the affidavit evidence of Mr. Johnstone was, for all intents and purposes, a direct copy of the content of these same UFCW webpages.
3. 6See the UFCW website.
4. 1Mounted Police Assn. of Ontario v. Canada, [2015] 380 D.L.R. (4th) SCC
5. 2SFL v. Saskatchewan, [2015] 380 D.L.R. (4th) SCC
6. 3B.C. Teachers’ Federation v. British Columbia, 2016 SCC 49