CITATION: United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc., 2021 ONSC 5611
DIVISIONAL COURT FILE NO.: DC 454/20
DATE: 20210819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and S.T. Bale JJ.
B E T W E E N:
UNITED FOOD AND COMMERCIAL
Douglas J. Wray and Micheil Russell, for the
WORKERS INTERNATIONAL UNION
Applicant
Applicant
- and -
AURORA CANNABIS ENTERPRISES INC.
Richard Charney, Samantha Cass and
and AGRICULTURAL, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Josh Hoffman for Aurora Cannabis, Respondent
Frank Cesario and Jennifer Querney, for the
Respondents
Respondent Tribunal
- and -
ATTORNEY GENERAL OF ONTARIO, LABOUR ISSUES COORDINATING COMMITTEE, ONTARIO PRINCIPALS’ COUNCIL, CATHOLIC PRINCIPALS’ COUNCIL OF ONTARIO, ASSOCIATION DES DIRECTIONS ET DIRECTIONS ADJOINTES DES ÉCOLES FRANCO- ONTARIENNES, ONTARIO SCHOOL TRUSTEES’ ASSOCIATION, L’ASSOCIATION DES CONSEILS SCOLAIRES CATHOLIQUES, THE ONTARIO PUBLIC SCHOOL BOARDS’ ASSOCIATION, and L’ASSOCIATION DES CONSEILS SCOLAIRES DES ÉCOLES PUBLIQUES DE L’ONTARIO
Intervenors
Estée Garfin and Rika Sawatsky, for the
Attorney General Ontario, Intervenor
John D.R. Craig and Jessica Moldaver,
for the Labour Issues Coordinating
Committee, Intervenor
Nini Jones, Jodi Martin and Lauren Pearce, for the Principals’ Associations, Intervenors
Eric M. Roher and Mannu Chowdhury, for the Catholic School Boards’ Associations, Intervenors
R. Paul Marshall and Joël Rocque, for the Public School Boards’ Associations,
Intervenors
Heard by ZOOM at Toronto:
June 14 and 15, 2021
REASONS FOR DECISION
Swinton j.:
[1] The applicant, United Food and Commercial Workers International Union (the “UFCW”), applies for judicial review, seeking to quash two decisions of the respondent Agricultural, Food and Rural Affairs Appeal Tribunal (the “Tribunal”):
a. The “Phase One Decision”, dated August 29, 2018 (2018 ONAFRAAT 12), in which the Tribunal dismissed UFCW’s complaint of an unfair labour practice against the respondent Aurora Cannabis Enterprises Inc. (“Aurora”) based on an allegation that Aurora failed to bargain in good faith[^1]; and
b. The “Phase Two Decision”, dated June 17, 2020 (20 ONAFRAAT 08), in which the Tribunal dismissed UFCW’s claim that ss. 2(1) and 5 of the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 (“AEPA” or the “Act”) infringes the guarantee of freedom of association found in s. 2(d) of the Canadian Charter of Rights and Freedoms.
[2] UFCW has not demonstrated that the decision respecting the unfair labour practice was unreasonable, nor has it shown that the Tribunal erred in finding there was no violation of s. 2(d) of the Charter. Accordingly, I would dismiss the application for judicial review.
The Historical Context
[3] This case is part of an ongoing effort by UFCW to establish collective bargaining rights for agricultural workers in Ontario, including a right to strike, through Charter litigation.
[4] Before 1994, agricultural workers were excluded from the labour relations scheme in the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), the legislation that generally governs collective bargaining in the private sector in Ontario. The LRA is administered by the Ontario Labour Relations Board (“OLRB”). Since 1943, the dominant model for labour relations in Canada has been the American “Wagner Act” regime, which permits certification of trade unions as exclusive bargaining agents for bargaining units and a right to strike.
[5] In 1994, Ontario enacted the Agriculture Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), which granted trade union and collective bargaining rights to agricultural workers. The legislation did not accord workers the right to withdraw their services, because of the potentially catastrophic effect of a sudden withdrawal of services in the agricultural sector. Instead, the Legislature provided for interest arbitration when negotiations reached an impasse.
[6] A year later, after a change of government in Ontario, the ALRA was repealed, and that repeal was challenged as being a violation of s. 2(d) of the Charter, the right to freedom of association (see Dunmore v. Ontario (Attorney General), 2001 SCC 94). The Supreme Court of Canada found that the inability of agricultural workers to organize without protective legislation was a violation of the Charter. However, the Court was clear in Dunmore that agricultural workers did not have a right to collective bargaining under a Wagner Act model. It was the exclusion of agricultural workers from any process of collective bargaining that resulted in a finding that their freedom of association under s. 2(d) of the Charter was violated.
[7] Following Dunmore, Ontario enacted legislation to govern the collective bargaining rights of agricultural workers, the AEPA. The AEPA creates a distinct labour regime for agricultural workers and excludes them from the LRA. The AEPA provides the rights of agricultural employees to:
Form or join an employees’ association (s. 1(2)(1))
Participate in lawful activities of an employees’ association (s. 1(2)(2))
Assemble (s. 1(2)(3))
Make representations at reasonable opportunities to their employers, through an employees’ association, respecting the terms and conditions of their employment (s. 5) and
Protection against interference, coercion, and discrimination in the exercise of their rights (ss. 8-10).
[8] The Agriculture, Food and Rural Affairs Appeal Tribunal is responsible for the administration of the AEPA. Section 11 provides that interested parties, including employees’ associations, may apply to the Tribunal alleging that there has been a contravention of the AEPA.
[9] The AEPA and the LRA are very different statutory schemes. Most notably, the LRA establishes an exclusive collective bargaining scheme, whereby all employees in a bargaining unit are represented by the same union. This exclusive bargaining agent model is referred to as the “Wagner Act” model. By contrast, the AEPA provides for a non-exclusive bargaining agent model, where multiple employee associations may represent different groups of employees in a single workplace. The LRA also establishes processes that employers and unions must follow before engaging in a strike or lockout, while the AEPA is silent with respect to strikes or lockouts.
[10] The constitutionality of the AEPA was challenged based on the Supreme Court of Canada’s prior decision in Dunmore. This challenge reached the Supreme Court of Canada, which upheld the AEPA’s constitutionality in Fraser v. Ontario (Attorney General), 2011 SCC 20.
[11] Significant changes in the Supreme Court’s jurisprudence on s. 2(d) of the Charter occurred in 2015. These are discussed further below. Given those changes, UFCW again challenged the constitutional validity of the AEPA.
Background Facts
[12] Aurora is a privately owned company engaged in the production of medical cannabis. Its activities include breeding, growing, harvesting, packaging and selling cannabis for medical use.
[13] UFCW is a trade union within the meaning of s.1(1) of the LRA. On May 25, 2015, it filed applications for certification of a bargaining unit comprised of Aurora’s production workers pursuant to the LRA with the OLRB and pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2, with the Canada Industrial Relations Board (“CIRB”).
[14] On July 13, 2015, the CIRB dismissed the application on the basis that Aurora’s operations are subject to provincial jurisdiction under the constitutional division of powers. The OLRB held a representation vote to determine if UFCW had the requisite support for certification on June 1, 2015. UFCW lost that vote. Subsequently, on December 15, 2015, the OLRB dismissed the application for certification on the basis that workers engaged in cannabis production are agricultural workers, and thus they are excluded from the LRA. The OLRB dismissed UFCW’s request for reconsideration on January 21, 2016. UFCW did not seek judicial review of the decisions of the CIRB and the OLRB.
[15] On January 27, 2016, UFCW wrote to Aurora as a worker’s representative under the AEPA, seeking to make representations to Aurora, as an employer of agricultural workers, pursuant to the Act. In the letter, UFCW requested information respecting wages and benefits for various employees and set out UFCW’s demands “respecting terms and conditions of employment”, including:
(i) an agreed-upon framework governing the circumstances where employees may exercise their right to strike (and the employer may exercise its right to lockout);
(ii) an agreement that any dispute between the parties will be determined by way of arbitration, except when a strike or lockout is permitted; and
(iii) an agreement that UFCW is the exclusive representative of agricultural employees employed by Aurora.
[16] On February 4, 2016, Aurora wrote to UFCW requesting evidence that UFCW represented any of Aurora’s employees. UFCW responded on two bases:
a. Evidence of membership is confidential and need not be disclosed to Aurora; and
b. In any event, Aurora had already received information that UFCW represented 32 Aurora employees during the certification vote under the LRA.
[17] Aurora took the position that it was entitled to current evidence that UFCW represented a worker or workers, and that the information from 2015 was outdated. Aurora proposed that the information could be provided by way of an affidavit, or the parties could retain an independent third party to verify representation evidence on an anonymous basis. UFCW rejected these proposals.
[18] On February 19, 2016, the UFCW filed an unfair labour practice complaint with the Tribunal under s. 11 of the AEPA. The complaint related to allegations that Aurora did not grant UFCW a reasonable opportunity to make representations, and that it violated employees’ rights by attempting to thwart their attempts to organize an employees’ association by using threats, intimidation, reprisals, and coercion. The complaint also asserted that the AEPA is unconstitutional.
[19] Over several months, the parties continued to disagree about whether Aurora was required to engage with UFCW and whether UFCW had to provide evidence of the employees it represented. Ultimately, the Tribunal ordered UFCW to provide an affidavit on October 26, 2016, indicating the number of employees it represented as of January 27, 2016.
[20] UFCW provided information on the employees represented. In February 2017, UFCW asked whether, in light of the information it had provided, Aurora had considered its representations. Aurora advised that it did not have any obligation to receive UFCW’s 2016 and 2017 representations, as the union had not established its representative status at that time. It asked UFCW for input on 2018 compensation issues, but advised that it would not discuss 2016 and 2017 compensation issues because those issues were before the Tribunal.
[21] The parties met in April 2017 and maintained their earlier positions. UFCW maintained that it represented Aurora employees in 2016 and 2017 and that Aurora should consider its representations. Aurora was not satisfied with the proof of UFCW’s representation during 2016 and 2017 but was willing to discuss 2018 compensation issues, provided evidence of current representation status was provided.
The Tribunal’s Decisions
[22] The Tribunal bifurcated the hearing of the UFCW complaint and ordered that the allegations of unfair labour practices under the AEPA be heard in one hearing, and that the constitutional challenge be heard in a separate hearing.
[23] As outlined earlier, the Tribunal rejected both the unfair labour practice complaint and the constitutional challenge. I will summarize the Tribunal’s reasons in each of these decisions after first setting out the standard of review.
Jurisdiction and the Standard of Review
[24] This Court has jurisdiction over this application pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[25] The Tribunal’s decisions are protected by a privative clause under s. 16 of the AEPA, which states:
A decision of the Tribunal is final and binding on the parties and any other person or entity that the Tribunal may specify.
[26] The standard of review of decisions of the Tribunal interpreting and applying the AEPA is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 25). This standard applies to the review of the Phase One Decision.
[27] The standard of review of the Phase Two Decision is correctness in respect to the constitutional issue (Vavilov at para. 57). This standard applies to the legal and constitutional findings in the Phase Two Decision. However, factual findings in the Phase Two Decision are reviewed in this Court on a deferential standard (Vavilov at para. 125).
Issue Number One: Was the Board’s dismissal of the unfair labour practice complaint reasonable?
The Phase One Decision
[28] The Phase One Decision dealt with whether Aurora engaged in an unfair labour practice, either by refusing to allow UFCW to make representations under s. 5(1) of the AEPA or by attempting to thwart employee attempts to organize using threats, intimidation, or coercion contrary to ss. 8, 9, and 10 of the AEPA. The current application for judicial review deals only with the representation issue, so there will be no further discussion of the other allegations raised during Phase One.
[29] UFCW alleged that Aurora failed to give it a reasonable opportunity to make representations pursuant to s. 5(1). The Tribunal rejected the allegation, noting that the AEPA does not provide for exclusive collective bargaining, as is the case under the LRA. Accordingly, it held that there may be multiple associations wishing to make representations on behalf of workers. In order that there can be productive discussions, the employer must know exactly whom the association represents and whether the association has authority to make representations on behalf of employees.
[30] The Tribunal held that there is an implied obligation of good faith on both sides under s. 5, and that the duty to consider representations requires that the parties meet and engage in meaningful dialogue. The Tribunal found that s. 5 requires the following:
The employees’ association must provide information sufficient, but no more, to allow the employer to know whom the association represents and must provide authorization to speak on an employee’s behalf.
This employee information is to remain confidential and not to be used for reprisal of any form.
The employees’ association must make representations to the employer that are consistent with the Act’s purposes.
The employer must consider the representations with an open mind and beyond mere pro forma listening or reading.
The parties must meet and engage in meaningful dialogue where positions are explained.
The parties must conduct themselves at all times in good faith.
[31] The Tribunal found that UFCW’s position – that it would not release the names of employees it represented - makes sense in a traditional labour relations context, where the union represents all employees in the bargaining unit. However, the scheme of the AEPA does not require an exclusive bargaining agent, and Aurora was entitled to know whom UFCW was representing. In fact, Aurora made several concessions to try to accommodate UFCW and still receive the information it needed. Each time, UFCW refused to cooperate or deviate from its traditional labour approach.
[32] The Tribunal concluded that UFCW’s adherence to a traditional labour relations approach was also exemplified in the issues it raised: it wanted to discuss the right-to-strike and the right-to-lockout, dispute resolution through arbitration, and exclusive representation, all of which are LRA concepts that are absent from the AEPA.
[33] Accordingly, the Tribunal found that Aurora did not deny UFCW a reasonable opportunity to make submissions; rather, it was UFCW that derailed the negotiation process.
The Positions of the Parties
[34] UFCW submits that the Tribunal’s interpretation and application of s. 5(1) of the AEPA in its Phase One Decision was unreasonable, because the Tribunal implied a good faith obligation on an employees’ association as well as the employer, it added new conditions to s. 5(1), and it erroneously found that UFCW derailed the negotiation process. Aurora argues that the Tribunal’s decision was reasonable.
Analysis
[35] Section 5 of the AEPA deals with the right of agricultural employees to make representations to their employer. Subsection 5(1) sets out the employer’s obligation:
The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.
[36] Subsection 5(3) sets out three considerations relevant to the determination of whether a “reasonable opportunity” has been given:
The timing of the representations relative to planting and harvesting times.
The timing of the representations relative to concerns that may arise in running an agricultural operation, including, but not limited to, weather, animal health and safety and plant health.
Frequency and repetitiveness of the representations.
Subsection 5(4) specifies that these three conditions are not a complete list of relevant considerations.
[37] UFCW argues that the Tribunal unreasonably held that the duty of good faith bargaining in s. 5 applies to an employees’ association as well as the employer. It also submits that the Tribunal acted unreasonably when it articulated the six requirements found in s. 5, as no authority is cited for these requirements. Finally, UFCW argues that the Tribunal unfairly concluded that UFCW had derailed the negotiation process.
[38] With respect to the scope of the duty to bargain in good faith, UFCW relies on the decision of the Supreme Court of Canada in Fraser, above. It points to paragraphs 99 and 102 through 105, where the Court speaks of the good faith duty of an employer pursuant to s. 5 of the AEPA. For example, the Court states,
[102] Three considerations lead us to conclude that any ambiguity in ss. 5(6) and (7) should be resolved by interpreting them as imposing a duty on agricultural employers to consider employee representations in good faith.
[103] The first consideration is the principle that a statute should be interpreted in a way that gives meaning and purpose to its provisions. This requires us to ask what the purpose of the requirements in ss. 5(6) and (7) is. There can only be one purpose for requiring the employer to listen to or read employee representations — to assure that the employer will in fact consider the employee representations. No labour relations purpose is served merely by pro forma listening or reading. To fulfill the purpose of reading or listening, the employer must consider the submission. Moreover, the employer must do so in good faith: consideration with a closed mind would render listening or reading the submission pointless.
[39] While Fraser speaks of the employer’s duty of good faith, the Supreme Court’s comments were made in the context of an assessment of whether the AEPA violated s. 2(d) of the Charter. At issue was whether the rights provided in the legislation were sufficient to allow meaningful collective bargaining, as required by s. 2(d). To meet that requirement, the Court held that there must be an employer obligation of good faith in considering employee representations in accordance with s. 5 (see Fraser at paras. 42-43).
[40] Fraser should not be read as specifying that it is the employer alone that has a duty of good faith. Indeed, Fraser quoted the earlier decision of the Supreme Court of Canada in Health Services and Support – Subsector Bargaining Association v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, which also discussed the duty of good faith in collective bargaining. The Court noted in Fraser that the duty of good faith in Canadian labour law is a duty of both employers and unions (at para. 101).
[41] The Tribunal concluded in the Phase One Decision, “In order for Section 5 of the AEPA to be able to operate properly and effectively, there must be an implied element of good faith on the part of both sides.” The conclusion that both parties have a duty to bargain in good faith is a reasonable interpretation of the AEPA.
[42] In addition, the requirements set out by the Tribunal in its reasons concerning the content of s. 5 were reasonable – for example, the obligation of an employees’ association to give information about whom it represented; the protection of the confidentiality of this information; the requirement to make representations consistent with the Act; the requirement of an open mind in relation to proposals put forth; the need for a meaningful dialogue; and an obligation of good faith by both parties. In setting out these requirements, the Tribunal was giving appropriate guidance to the parties governed by this legislation.
[43] Finally, UFCW has not shown that the decision of the Tribunal on the merits of the complaint was unreasonable. Given that the AEPA allows employees to make representations to their employer concerning working conditions, it was reasonable for the Tribunal to conclude that the employer could ask for information about the number of employees represented and the authority given to an association by employees. After considering the history of the parties’ interactions, the Tribunal concluded that Aurora [Medreleaf] had not violated s. 5 when it asked for information about representation. The following paragraph usefully sums up the Tribunal’s reasoning:
So, did MedReleaf violate the requirements of section 5 of the AEPA? In the Tribunal’s opinion, it did not. UFCW steadfastly maintained a position that it was not going to provide information regarding employees, from their names to their positions to the nature of their affiliation with the union. In the traditional labour sense, this is understandable when the union represents all of the employees. But not in this case. MedReleaf was entitled to know whom UFCW was representing. However, MedReleaf was not asking for that information; it simply sought confirmation of representation and continually offered concessions to allow that to happen. In our opinion, MedReleaf acted reasonably and sought a compromise solution; each time it was rebuffed by UFCW, which refused to deviate from the traditional labour approach.
[44] It was reasonable for the Tribunal to conclude that Aurora had not violated s. 5. Its finding that UFCW had “derailed the process” was also a finding open to it on the evidence.
[45] UFCW submits that the Tribunal failed to address the significance of Aurora’s refusal to discuss 2016 and 2017 compensation when the parties met in April 2017. Aurora indicated that it was prepared to discuss 2018 compensation once adequate information was provided about representation.
[46] While the Tribunal did not explicitly address the issue of negotiations respecting 2016 and 2017 compensation, this does not render its decision on the complaint unreasonable. When the parties met in April 2017, the evidence concerning representation had been provided by UFCW as of January 2016. Aurora was concerned that the evidence was outdated, given that it pertained to membership cards dated in May 2015. Aurora notes that the OLRB treats membership information as dated when it is over one year old.
[47] When one reads the Tribunal’s reasons on the s. 5 issue as a whole, as required by Vavilov (at para. 102), the decision is reasonable. Essentially, the Tribunal found that the UFCW never adequately established its current authority to represent employees, and therefore, Aurora had not violated its duty to engage in good faith negotiations – whether for 2016, 2017 or 2018 compensation.
Issue Number 2: Did the Tribunal err in failing to find that the AEPA violates s. 2(d) of the Charter?
The Constitutional Context
[48] As mentioned earlier in these reasons, the validity of the AEPA was challenged once before as a violation of s. 2(d) of the Charter, the right to freedom of association. The legislation was held to be constitutionally valid in Fraser in 2011. The summary found in para. 2 of the majority reasons of the Supreme Court of Canada in Fraser explains why:
Section 2(d) of the Charter protects the right to associate to achieve collective goals. Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith.
[49] The Supreme Court emphasized in Fraser that s. 2(d) of the Charter does not protect a particular model of collective bargaining, such as the Wagner Act model (at para. 45). The Court set out the test for a s. 2(d) infringement as follows (at para. 47).:
If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established, and the onus shifts to the state to justify the limit under s. 1 of the Charter.
[50] With respect to the AEPA, the Court concluded that s. 5, properly interpreted, imposed a requirement on an employer to negotiate with employees in good faith, and thus it was compliant with s. 2(d) (at para. 107). The Court also rejected the argument that the process under the AEPA would be ineffective, because there was little history of negotiations under the Act, and the process before the Tribunal, to enforce the good faith obligation, had not been pursued by those challenging the legislation (at paras. 109-112).
[51] UFCW argues that there have been significant changes to the s. 2(d) jurisprudence because of a trilogy of cases decided by the Supreme Court of Canada in 2015: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (“MPAO”), Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125, and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 (“SFL”). For purposes of the present application, the MPAO and SFL cases are significant.
[52] In MPAO, the Supreme Court of Canada considered the validity of the exclusion of RCMP officers from the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, and the alternative mechanism for labour relations, including a Staff Relations Representative Program, created by s. 96 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281. The majority’s conclusion is summarized at para. 5:
We conclude that the s. 2(d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests. The current RCMP labour relations regime denies RCMP members that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence.
[53] In their reasons, the majority highlighted the need for a generous and purposive approach to the interpretation of s. 2(d) of the Charter, holding that the provision guarantees the right to meaningfully associate for the pursuit of workplace goals. The Court explicitly stated that its conclusions did not affect its earlier conclusions in Fraser (see, for example, MPAO at para. 67). The Court also discussed its decision in Fraser and clarified that the test for a violation of s. 2(d) is substantial interference with the right to a meaningful process of collective bargaining, not a complete denial of association (at paras. 71 and 80).
[54] In SFL, the Supreme Court dealt with the prohibition of “essential services employees” from striking under the Public Services Essential Services Act, S.S. 2008, c. P- 42.2. Specifically overturning its earlier jurisprudence on the right to strike, the Court held that the right to strike is an essential component of collective bargaining, and therefore it is protected under s. 2(d) (at paras. 2 and 3). The majority stated at para. 75:
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.
[55] Because the power of a strike lies in the fact that it is a joint endeavour, alternative dispute resolution mechanisms that do not have a collective aspect are not considered under s. 2(d). Instead, such mechanisms are considered in the s. 1 analysis. In SFL, prohibiting those who were deemed to be essential workers from striking was held not to be a minimal impairment under s. 1, because there was no meaningful alternative for dispute resolution should an impasse arise in bargaining.
The Phase Two Decision
[56] In Phase Two, UFCW took the position that ss. 2(1) and 5 of the AEPA violated s. 2(d) of the Charter and were not saved by s. 1. Essentially, its argument was that the failure of the AEPA to provide a right to strike and protection for an employee’s return to work in the event of a strike violates s. 2(d).
[57] In its decision, the Tribunal focused on the evidence pertaining to Aurora’s employees, although it received expert evidence about farm workers more generally. It did so because its jurisdiction was limited to a complaint respecting Aurora’s workers and their workplace (at paras. 30-31).
[58] The Tribunal concluded that it was bound by the Supreme Court’s decision in Fraser (at paras. 46 and 66), which was not overruled by the 2015 cases. The Tribunal also noted that the AEPA, unlike the legislation considered in SFL, does not prohibit a strike, and the Tribunal observed that a common law right to strike still exists.
[59] The Tribunal also found that the constitutional challenge was premature, as UFCW had not tested the impact of the AEPA in a situation where employees actually sought to withdraw their labour. The Tribunal stated at para. 106:
Faced 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.
[60] Ultimately, the Tribunal concluded that UFCW had failed to show a substantial interference with the Aurora employees’ right to meaningfully associate for the purpose of collective bargaining. At paras. 135-136, the Tribunal stated,
[135] In 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.
[136] As 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.
The Position of the Parties
[61] UFCW argues that the Tribunal erred in rejecting its constitutional challenge. It submits that the content of s. 2(d) was clearly broadened by the Supreme Court’s decision in SFL. Given that change, particularly the recognition that s. 2(d) protects the right to strike, the absence of a right to strike in the AEPA is a substantial interference with collective negotiations.
[62] UFCW also challenges the Tribunal’s assumption that a common law right to strike is adequate to protect agricultural employees, given the historic imbalance of power between employees and their employer. The intervenor Principals’ Associations also argue that the common law right to strike recognized by the Tribunal is nothing more than a right to quit employment, and that is not a meaningful process of collective bargaining.
[63] Aurora, the Attorney General of Ontario and the remaining intervenors argue that the Tribunal correctly determined that there is no violation of s. 2(d). They distinguish SFL on the basis that the legislation there had explicitly banned the right to strike and provided no alternative mechanism for determining working conditions.
Analysis
[64] In reviewing the Tribunal’s decision, it is important to remember the limited jurisdiction of the Tribunal. It did not have the authority to give a declaration about the constitutional validity of the AEPA; rather, its role was to determine whether the right to freedom of association enjoyed by Aurora’s employees had been violated. As the Supreme Court of Canada stated in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5,
Furthermore, a formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.
[65] In this application for judicial review, this Court must determine whether the Tribunal’s Phase Two decision was correct. In my view, the Tribunal correctly concluded that ss. 2 and 5 of the AEPA do not violate the right to freedom of association of Aurora’s employees.
[66] Like the Tribunal, this Court is bound by the principle of vertical stare decisis. In 2011, in Fraser, the Supreme Court of Canada held that the AEPA was constitutionally valid, and not in violation of s. 2(d). The focus of the Court’s analysis in that case was s. 5 of the Act, with the Court concluding that the overall scheme of the Act, and particularly s. 5, sufficiently protected agricultural workers’ right to meaningful collective negotiations. Section 5 is under attack again in the present application for judicial review.
[67] A lower court can depart from the principle of vertical stare decisis only in limited circumstances. As stated by the Supreme Court of Canada in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 42:
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
See, as well, R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342 at para. 29.
[68] While the Supreme Court’s 2015 labour trilogy made important changes to the interpretation of s. 2(d), especially in recognizing that it included protection for the right to strike, the Court did not overrule Fraser at that time. Indeed, there are numerous references to Fraser in both MPAO and SFL. Nothing in those cases indicates that the Court was calling the result in that case into question. Accordingly, the Tribunal correctly held that it was bound by Fraser, given the principle of stare decisis.
[69] Moreover, UFCW has not demonstrated that the AEPA interferes with the freedom of employees to collectively withdraw their services. The Act is dissimilar to that found to be unconstitutional in SFL because it does not explicitly curtail the right to strike. As Aurora aptly states, the AEPA, as drafted, neither prevents strikes nor promotes them.
[70] The Tribunal concluded that the AEPA contemplates a common law right to strike (at para. 106) and, in an appropriate case, the Tribunal may consider whether employees have a right to withdraw their services, subject to the considerations relating to the agricultural sector found in s. 5(3). Thus, the AEPA does not prohibit strikes, as was the case in SFL.
[71] UFCW argues that the common law right to strike is an empty one, given there is no protection for workers’ employment if they engage in strike activity. In effect, it asserts a positive rights claim in arguing that the AEPA is underinclusive.
[72] While the Supreme Court of Canada held in Dunmore that underinclusiveness may result in a violation of a Charter right, the onus is on the party challenging the legislation to show, on the basis of evidence, that there has been a substantial interference with the party’s ability to exercise the protected right because of state action (at paras. 24-28).
[73] The Tribunal found, on the basis of the evidence before it, that Aurora’s employees have significant economic leverage against their employer because of the nature of their work and the limited pool of replacement employees (at para. 100). That finding is deserving of deference in this Court.
[74] The Tribunal also found that the challenge to the validity of the AEPA was premature, because the Aurora employees never tried to withdraw their services or to put economic pressure on their employer. Accordingly, the Tribunal has never been asked to deal with the propriety of a withdrawal of services or the use of economic pressure by employees. Thus, the Tribunal concluded that one cannot properly determine whether s. 11 provides adequate protection to workers who withdraw their services. I agree with that conclusion.
[75] UFCW cites a number of cases post-2015 that it claims support its position: Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418; OPSEU v. Ontario, 2016 ONSC 2197; Province of New Brunswick v. New Brunswick Council of Nursing Home Unions (CUPE), 2019 NBCA 85; United Nurses of Alberta v. Alberta Health Services, 2019 111202 (AB LRB); Manitoba Federation of Labour v. The Government of Manitoba, 2020 MBQB 92; and Hermanns Contracting Limited, 2017 82853 (ON LRB).
[76] However, the cases post 2015 relied on by UFCW to support its argument do not assist it. A number of those cases dealt with a legislative ban on strikes (for example, Canadian Union of Postal Workers, OPSEU, and Province of New Brunswick). The AEPA does not ban strikes, and s. 11 provides a possible protection for concerted withdrawal of services, through a complaint to the Tribunal - an avenue that remains untested.
[77] Two of the other cases, Alberta Health Services and Hermanns, dealt with the exclusion of a group of employees from any labour relations regime. Dunmore was applied successfully in those cases.
[78] Moreover, the Quebec Superior Court has held that legislative silence on the right to strike is not a violation of s. 2(d) of the Charter (see Société des casinos du Québec inc. c. Tribunal administratif du travail, 2018 QCCS 4781 at paras. 226-228.)
[79] The onus was on UFCW to show that the AEPA violates s. 2(d) because ss. 2 and 5 substantially interfere with meaningful collective bargaining by Aurora’s employees (Fraser at para. 98). UFCW has not provided a proper factual context to show this to be the case, and so the Tribunal correctly concluded that the constitutional challenge must fail.
Conclusion
[80] For these reasons, the application for judicial review is dismissed.
[81] Costs to Aurora are payable by UFCW in the agreed amount of $10,000.00. No other party seeks costs.
Swinton J.
I agree
D.L. Corbett J.
I agree _______________________________
S.T. Bale J.
Released: August 19, 2021
CITATION: United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc., 2021 ONSC 5611
DIVISIONAL COURT FILE NO.: DC 454/20
DATE: 20210819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and S.T. Bale JJ.
BETWEEN:
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION Applicant
- and -
AURORA CANNABIS ENTERPRISES INC. and AGRICULTURAL, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL Respondents
- and -
ATTORNEY GENERAL OF ONTARIO, LABOUR ISSUES COORDINATING COMMITTEE, ONTARIO PRINCIPALS’ COUNCIL, CATHOLIC PRINCIPALS’ COUNCIL OF ONTARIO, ASSOCIATION DES DIRECTIONS ET DIRECTIONS ADJOINTES DES ÉCOLES FRANCO- ONTARIENNES, ONTARIO SCHOOL TRUSTEES’ ASSOCIATION, L’ASSOCIATION DES CONSEILS SCOLAIRES CATHOLIQUES, THE ONTARIO PUBLIC SCHOOL BOARDS’ ASSOCIATION, and L’ASSOCIATION DES CONSEILS SCOLAIRES DES ÉCOLES PUBLIQUES DE L’ONTARIO Intervenors
REASONS FOR DECISION
Swinton J.
Released: August 19, 2021
CITATION: United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc., 2021 ONSC 5611
DIVISIONAL COURT FILE NO.: DC 454/20
CORRIGENDUM DATE: 20210907
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and S.T. Bale JJ.
B E T W E E N:
UNITED FOOD AND COMMERCIAL
Douglas J. Wray and Micheil Russell, for the
WORKERS INTERNATIONAL UNION
Applicant
Applicant
- and -
AURORA CANNABIS ENTERPRISES INC.
Richard Charney, Samantha Cass and
and AGRICULTURAL, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
Josh Hoffman for Aurora Cannabis, Respondent
Frank Cesario and Jennifer Querney, for the
Respondents
Respondent Tribunal
- and -
ATTORNEY GENERAL OF ONTARIO, LABOUR ISSUES COORDINATING COMMITTEE, ONTARIO PRINCIPALS’ COUNCIL, CATHOLIC PRINCIPALS’ COUNCIL OF ONTARIO, ASSOCIATION DES DIRECTIONS ET DIRECTIONS ADJOINTES DES ÉCOLES FRANCO- ONTARIENNES, ONTARIO SCHOOL TRUSTEES’ ASSOCIATION, L’ASSOCIATION DES CONSEILS SCOLAIRES CATHOLIQUES, THE ONTARIO PUBLIC SCHOOL BOARDS’ ASSOCIATION, and L’ASSOCIATION DES CONSEILS SCOLAIRES DES ÉCOLES PUBLIQUES DE L’ONTARIO
Intervenors
Estée Garfin and Rika Sawatsky, for the
Attorney General Ontario, Intervenor
John D.R. Craig and Jessica Moldaver,
for the Labour Issues Coordinating
Committee, Intervenor
Nini Jones, Jodi Martin and Lauren Pearce, for the Principals’ Associations, Intervenors
Eric M. Roher and Mannu Chowdhury, for the Catholic School Boards’ Associations, Intervenors
R. Paul Marshall and Joël Rocque, for the Public School Boards’ Associations,
Intervenors
Heard by ZOOM at Toronto:
June 14 and 15, 2021
CORRIGENDUM
Corrected decision: The following paragraphs replace the corresponding paragraphs in the original Reasons for Decision issued on August 19, 2021.
[5] In 1994, Ontario enacted the Agriculture Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), which granted trade union and collective bargaining rights to agricultural workers. The legislation did not accord workers the right to withdraw their services, because of the potentially catastrophic effect of a sudden withdrawal of services in the agricultural sector. Instead, the Legislature provided for interest arbitration when negotiations reached an impasse.
[6] A year later, after a change of government in Ontario, the ALRA was repealed, and that repeal was challenged as being a violation of s. 2(d) of the Charter, the right to freedom of association (see Dunmore v. Ontario (Attorney General), 2001 SCC 94). The Supreme Court of Canada found that the inability of agricultural workers to organize without protective legislation was a violation of the Charter. However, the Court was clear in Dunmore that agricultural workers did not have a right to collective bargaining under a Wagner Act model. It was the exclusion of agricultural workers from any process of collective bargaining that resulted in a finding that their freedom of association under s. 2(d) of the Charter was violated.
[7] Following Dunmore, Ontario enacted legislation to govern the collective bargaining rights of agricultural workers, the AEPA. The AEPA creates a distinct labour regime for agricultural workers and excludes them from the LRA. The AEPA provides the rights of agricultural employees to:
Form or join an employees’ association (s. 1(2)(1))
Participate in lawful activities of an employees’ association (s. 1(2)(2))
Assemble (s. 1(2)(3))
Make representations at reasonable opportunities to their employers, through an employees’ association, respecting the terms and conditions of their employment (s. 5) and
Protection against interference, coercion, and discrimination in the exercise of their rights (ss. 8-10).
Swinton J.
I agree
D.L. Corbett J.
I agree
S.T. Bale J.
Corrigendum Date: September 7, 2021
[^1]: At the time of the complaint, Aurora was known as “MedReleaf….”. I refer to the respondent employer as “Aurora” throughout this decision.