Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 CanLII 72 (SCC), [1990] 2 SCR 367

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367

The Professional Institute of

the Public Service of Canada Appellant

v.

The Commissioner of the Northwest

Territories and the Northwest Territories

Public Service Association Respondents

and

The Attorney General of Canada and

the Attorney General for Ontario Interveners

indexed as: professional institute of the public service of canada v. northwest territories (commissioner)

File No.: 21230.

1990: February 20; 1990: August 16.

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

on appeal from the court of appeal for the northwest territories

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

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

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

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

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

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

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

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

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

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

Cases Cited

By Sopinka J.

Considered: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; referred to: Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Jamieson v. Attorney-General of British Columbia (1971), 21 D.L.R. (3d) 313; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Morgentaler, [1988] 1 S.C.R. 30; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.

By L'Heureux-Dubé J.

Applied: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; referred to: R. v. Skinner, [1990] 1 S.C.R. 1235.

By Dickson C.J.

Applied: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.

By Cory J. (dissenting)

Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; NSNU, Devco Local v. Canada Labour Relations Board (1989), 58 D.L.R. (4th) 225; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103.

Statutes and Regulations Cited

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 28, 29, 31, 38(1), 39(1).

Canadian Charter of Rights and Freedoms, ss. 1, 2(d), 15(1).

Labour Code, R.S.B.C. 1979, c. 212, s. 43.

Labour Relations Act, 1977, S.N. 1977, c. 64, s. 37(2).

Labour Relations Act, R.S.M. 1987, c. L10, s. 40.

Labour Relations Act, R.S.O. 1980, c. 228, s. 7.

Labour Relations Code, S.A. 1988, c. L-1.2, s. 37.

Northwest Territories Public Service Association Act, R.S.N.W.T. 1974, c. N-2, s. 3.

Public Service Act, R.S.N.W.T. 1974, c. P-13, ss. 3, 5, 7, 15(1), 26, 32, 40, 42, 43.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

Trade Union Act, R.S.S. 1978, c. T-17.

Authors Cited

Adams, George W. Canadian Labour Law: A Comprehensive Text. Aurora, Ont.: Canada Law Book, 1985.

Cavalluzzo, Paul J. J. "Freedom of Association -- Its Effect Upon Collective Bargaining and Trade Unions" (1988), 13:2 Queen's L.J. 267.

Jenks, C. Wilfred. Human Rights and International Labour Standards. London: Stevens & Sons, 1960.

Summers, Clyde W. "Freedom of Association and Compulsory Unionism in Sweden and the United States" (1964), 112 U. Pa. L. Rev. 647.

APPEAL from a judgment of the Northwest Territories Court of Appeal, [1988] N.W.T.R. 223, [1988] 5 W.W.R. 684, 53 D.L.R. (4th) 530, 41 C.R.R. 230, setting aside the judgment of Marshall J. (1987), 43 D.L.R. (4th) 472, declaring s. 42(1) of the Public Service Act (N.W.T.) unconstitutional. Appeal dismissed, Wilson, Gonthier and Cory JJ. dissenting.

Catherine H. MacLean and Dougald E. Brown, for the appellant.

Robert A. Kasting and Bernard W. Funston, for the respondent the Commissioner of the Northwest Territories.

Andrew J. Raven, for the respondent the Northwest Territories Public Service Association.

Graham R. Garton, for the intervener the Attorney General of Canada.

Robert E. Charney, for the intervener the Attorney General for Ontario.

//Dickson C.J.//

The following are the reasons delivered by

DICKSON C.J. -- I have had the benefit of reading the reasons for judgment of my colleagues Justice Sopinka and Justice Cory in this appeal. While I agree with the disposition reached by Sopinka J., I draw that conclusion solely on the basis of my interpretation of the reasons for judgment of the majority of this Court in what has come to be known as the labour law "trilogy": Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. The correctness of the majority judgments in this trilogy of cases was not challenged directly by the appellant before this Court.

In Reference Re Public Service Employee Relations Act (Alta.), supra, three members of a six member Court held, at p. 390, per Le Dain J., that:

. . . the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively . . . .

A fourth member, McIntyre J., explicitly found that the s. 2(d) right adheres only to individuals (at p. 397):

The group or organization is simply a device adopted by individuals to achieve a fuller realization of individual rights and aspirations . . . . Freedom of association cannot therefore vest independent rights in the group.

In my view, the reasons for judgment of the majority in the three cases mentioned are dispositive of the issue raised in this appeal. The determination of how bargaining agents are chosen is the first stage of the right to bargain collectively. Furthermore, in the context of an inter-union struggle for the status of exclusive bargaining agent, I find it impossible to characterize the right claimed by the appellant as other than a group right adhering to the trade union. At the stage of incorporation by the legislature, the focus is no longer upon the associational rights of individuals. Rather, it shifts to the group itself, which seeks the support of individuals to establish itself as the exclusive bargaining agent. Thus, according to the decision of the majority in Reference Re Public Service Employee Relations Act (Alta.), supra, the legislative choice of how bargaining agents are chosen is beyond constitutional scrutiny in terms of s. 2(d) of the Canadian Charter of Rights and Freedoms both because it is an element of the collective bargaining process and because of the individual nature of the s. 2(d) right.

Reluctantly, I find that I am unable to agree with Cory J.'s assertion that once a legislature has chosen to establish a public sector collective bargaining scheme it may not place arbitrary restrictions upon the choice of association with which it will engage in collective bargaining. If, as Cory J. concedes, the government of the Northwest Territories was under no duty to enact a scheme of collective bargaining, then in my view it logically follows that limitations placed upon a purely statutory entitlement do not attract the protection of s. 2(d) of the Charter. If s. 2(d) does not guarantee the right to bargain collectively, I fail to understand how it can guarantee a right to any particular bargaining agent. To find otherwise in effect would constitutionalize collective bargaining rights, a proposition which was rejected by a majority of this Court in Reference Re Public Service Employee Relations Act (Alta.).

For these reasons, and not without considerable hesitation having regard to the views which I expressed in the labour law trilogy of cases on the scope of s. 2(d) of the Canadian Charter of Rights and Freedoms, I have concluded that, short of overruling the reasons of the majority of this Court in the trilogy, this appeal must be dismissed with costs to the respondents. I agree with Sopinka J. that the constitutional questions should be answered as follows:

1.Does s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?

Answer: No.

2.If the answer to question 1 is in the affirmative, can s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: The question need not be answered.

//Cory J.//

The reasons of Wilson, Gonthier and Cory JJ. were delivered by

CORY J. -- I have had the advantage of reading the reasons of my colleague Justice Sopinka. While I agree with his position regarding the issue of standing, I must respectfully disagree with his conclusion that s. 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, does not contravene s. 2(d) of the Canadian Charter of Rights and Freedoms.

The Public Service Act

The Public Service Act is a comprehensive statute designed to regulate all aspects of employment in the public service of the Northwest Territories. It is relatively short with only 50 sections. Nonetheless, its provisions are broad in their scope. They encompass the organization of the public service, the classification of jobs, the making of appointments, and the terms and conditions of employment, including pay, suspensions, demotions, dismissals and holidays. The Act, by s. 42(2), also makes provision for the Commissioner (now described in the Act as the Minister) to enter into a collective agreement with an employees' association.

The most cursory review of the Act reveals one very significant feature. The Commissioner is specifically empowered to make a wide range of decisions. The Commissioner manages and directs the public service (s. 3); classifies the service and each position within it (s. 5); establishes the rates of pay (s. 7); has the exclusive right and authority to appoint persons to positions in the service (s. 15(1)); can dismiss or lay off employees (ss. 26 and 32); and can make regulations to carry the provisions and purposes of the Act into effect (s. 40). The Government, through the Commissioner, has thus retained the means of controlling the conditions of employment in the public service.

This control is reflected in the collective bargaining provisions of the Act. Section 42(1)(a) defines a collective agreement as being an agreement entered into between the Commissioner and an "employees' association". Section 42(1)(b) defines an employees' association as follows:

42. (1) In sections 42 to 46

(b)"employees' association" means an association of public service employees incorporated by an Act empowering it to bargain collectively.

Section 42(2) then states that the Commissioner "may" enter into a collective agreement with such an association.

The result of these provisions is that the government is able to control every aspect of the collective bargaining process. Not only does the Act give the government an unfettered discretion to choose which association will be incorporated as a collective bargaining agent under s. 42(1)(b), but it also makes the negotiation of a collective agreement a discretionary process on the part of the government. This Act is one of the few statutes governing labour relations extant in Canada which makes not only the choice of the employees' association but also a change of that association by the employees subject to the approval of the government, which is the employer. Whether that approval is to be given is within the absolute discretion of the government employer.

The legislative scheme seems to heavily favour the government to the extent of being one-sided, but this case is not concerned with the apparent unfairness of the legislation. Rather, the question is whether the Act infringes the right of freedom of association enshrined in s. 2(d) of the Charter.

Section 2(d)

Section 2(d) of the Charter provides:

2. Everyone has the following fundamental freedoms:

(d) freedom of association.

The section must be considered in light of three decisions of this Court: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (the Alberta Reference); PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. A helpful summary of the positions taken in these cases was made by MacGuigan J. in NSNU, Devco Local v. Canada Labour Relations Board (1989), 58 D.L.R. (4th) 225 (F.C.A.), at p. 232, where he stated:

In those cases three of the six participating judges held that the guarantee of freedom of association in s. 2(d) of the Charter does not include a guarantee either of the right to bargain collectively or of the right to strike, two judges held that it included both guarantees, and the sixth held that it did not include a guarantee of the right to strike (which was all that was necessary for decision in those cases) but left open the possibility that other aspects of collective bargaining may be Charter-protected.

Two of the cases in the trilogy, namely, the Alberta Reference and RWDSU, considered whether s. 2(d) constitutionally protected the right to strike. McIntyre J. held in those cases that the right to strike was not protected under s. 2(d). In the Alberta Reference, he also seemed to suggest that the right to bargain collectively was not included under the guarantee of freedom of association, although that issue was not specifically before the Court. In fact, Le Dain J. stated in his reasons in the Alberta Reference at p. 390:

I agree with McIntyre J. that the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal and answer the constitutional questions in the manner proposed by him.

However, in his reasons in PSAC, McIntyre J. indicated that he did not intend to go that far. In PSAC the constitutional validity of legislation which imposed a "6 and 5" percentage cap on wage increases for two years and denied the right to strike or to lockout during that time frame was questioned. McIntyre J. referred to his reasons in the Alberta Reference, and wrote at p. 453:

. . . I am of the opinion that s. 2(d) of the Charter does not include a constitutional guarantee of a right to strike. My finding in that case does not, however, preclude the possibility that other aspects of collective bargaining may receive Charter protection under the guarantee of freedom of association. [Emphasis added.]

He went on to hold that the legislation in question did not infringe s. 2(d) because, while it limited the bargaining power of the union, it still permitted negotiations between the employer and the union with regard to other terms and conditions of employment.

In PSAC, as in the other cases of the trilogy, Dickson C.J. and Wilson J. expressed the opinion that s. 2(d) did constitutionally guarantee a right to collectively bargain. On the other hand, Le Dain J., with Beetz and La Forest JJ. concurring, found that s. 2(d) did not include such a right. It can be seen that the Court appears to have been evenly divided on the question of whether s. 2(d) could guarantee at least some aspects of the right to collectively bargain. It thus remains an open question as to whether all aspects of collective bargaining are precluded from s. 2(d) protection.

However, it is not necessary for the disposition of this case to re-open that issue. Here, the legislation in question sets up a collective bargaining regime. It then precludes all employees, groups or associations except the group or groups incorporated by the exercise of an absolute government discretion from participating in that process. To my mind, this strikes at the very heart of freedom of association.

Nature of the Freedom of Association

Freedom of association is the freedom to join together for the purpose of achieving common goals. It is a right that is fundamental to a free and democratic society. Le Dain J. in the Alberta Reference wrote at p. 391:

. . . the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted.

The right of association is vitally important in our industrialized society. As C. Wilfred Jenks remarked in Human Rights and International Labour Standards (1960), at p. 49:

In an age of interdependence and large-scale organisation, in which the individual counts for so little unless he acts in co-operation with his fellows, freedom of association has become the cornerstone of civil liberties and social and economic rights alike.

Freedom of association, like freedom of expression and freedom of religion, is an individual right. It is not a right which adheres to a group, or to the purposes or objectives of that group. As Clyde W. Summers observed in "Freedom of Association and Compulsory Unionism in Sweden and the United States" (1964), 112 U. Pa. L. Rev. 647, at p. 647:

Although commonly asserted by the organization, freedom of association is not simply a collective right vested in the organization for its benefit. Freedom of association is an individual right vested in the individual to enable him to enlarge his personal freedom. Its function is not merely to grant power to groups, but to enrich the individual's participation in the democratic process by his acting through those groups. [Emphasis added.]

Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee's life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer. If collective bargaining is to function properly, employees must have confidence in their representative. That confidence will be lost if the individual employee is unable to choose the association.

Effect of the Northwest Territories Act on the Right of Association

At the outset it must be acknowledged that the Northwest Territories government was under no duty to enact a collective bargaining legislative scheme. Nor could an association of employees claim that it had a constitutional right to the enactment of such a scheme. However, once the Northwest Territories government undertook to enact such a legislative scheme, the legislation became subject to constitutional scrutiny. It follows that I cannot agree with the position taken by my colleague that if a government has no duty to bargain with anyone, then it also may, in the exercise of an absolute discretion, choose with whom it wishes to bargain. While this concept may hold true in a completely open economy, it cannot be applied in Canada where legislation has been enacted which governs and controls the collective bargaining process.

Section 42(1)(b) of the Act allows the government to totally monopolize the decision as to which associations are to be incorporated and thereby become "employees' associations". Only the government can incorporate an employees' association. Only those associations which in the discretion of the government have been incorporated can then participate in the collective bargaining process. The legislated governmental discretion to create these entities must of necessity also include a governmental discretion to refuse to incorporate an association. There are neither bars to curb nor guidelines to direct the exercise of this absolute discretion. The section provides the means by which the government can, for all collective bargaining purposes, deny the very existence of an association selected by the employees to bargain on their behalf. Such an untrammeled governmental discretion must prima facie violate an individual's freedom of association.

The right of the individual employee to join the association of his or her choice seems to me to be of fundamental importance. It not only enables the individual to better participate in the democratic process by acting through a group, but it permits the individuals to act in concert to seek fairness in wage settlements and working conditions. At the very least, the forming or changing of an entity to undertake collective bargaining is entitled to the protection of the Charter right of freedom of association.

The right of employees to change their collective bargaining association is just as important as the right to form it. It may be important to a group of employees to be represented by a national or international union. Such an entity may have access to expert advice on a wide variety of subjects ranging from the field of economics to the effects on health and safety of their work. At other times the reverse may be true and for valid reasons the employees may wish to be represented by a small and local entity. The needs of the employees are only known by them, and they should have the right to choose the association which can best represent their needs. Section 42(1)(b) of the Act denies them of that choice.

A simple example may help to illustrate the pernicious nature of the Public Service Act and to illustrate the problem faced by employees seeking to form an association. Let us imagine that s. 42(1)(b) applied to all employees' associations, not just those concerned with collective bargaining. Suppose individual employees formed an association, a team, to play hockey or baseball. The Government, through the Commissioner, could say that only those teams approved at the discretion of the Government are allowed to play baseball or hockey, or even to attempt to book ice time or to reserve a baseball field. The Government would still graciously permit the team members to meet whenever or wherever they liked, at which meetings they could discuss the weather or the standard of television programs. However, they could not play baseball or hockey. In those circumstances the right of the employees to associate for the lawful purpose of playing baseball or hockey would have been frustrated. How much more important is the right to form an association for the purpose of collective bargaining? Yet, the employees' right to select, to form, or to change the association which they wish to have bargain collectively on their behalf is frustrated in the case at bar by the provisions of s. 42(1)(b), and, as a result, their guaranteed Charter right to associate is infringed.

It follows that I cannot accept the statement of my colleague that "s. 42(1)(b) has no effect on the existence of the Institute" and that the union exists as long as the individuals can meet at a town hall and discuss their grievances. The hypothetical team in the example above did not exist because, while the members could meet, they could not play hockey or baseball. Similarly, a union can only exist if it is allowed to bargain collectively. That is the raison d'être of a union. In order to carry out its function of bargaining it must be recognized pursuant to the provisions of the relevant labour legislation. However, such an association or union does not "exist" under the Northwest Territories Act until it is incorporated as an "employees' association". The Act thus effectively prevents `unincorporated' associations from coming into existence and, by frustrating the employees' choice, thereby infringes the individual employees' right to associate. To say that the union exists as long as the individuals can meet and discuss their grievances is, with respect, to cast a spell of unreality over the situation. The voiced grievances would have no more effect than casual complaints about the weather.

That s. 42(1)(b) denies the employees their right to associate was also acknowledged by Kerans J.A. in the Court of Appeal below. He stated ([1988] N.W.T.R. 223, at p. 233):

On the other hand, the requirement that the proposed bargaining agent be incorporated by the council might bear on freedom of association. Moreover, the limit is acknowledged to be unnecessary and capricious and the result of legislative oversight, so that it could not be sustained on invocation of s. 1 [of the Charter]. Therefore, the prospect of striking down looms unless the interpretive approach discussed at the outset can save it.

Kerans J.A. thus concluded that s. 42(1)(b) violated the employees' freedom of association. However, he held that the constitutionality of the section could be saved by reading in the words "or recognized" after the word "incorporated". In my view, it was not open to the Court of Appeal to add these words to change the natural meaning of incorporated and thereby alter the sense of s. 42(1)(b). Nor would the addition of those words save the constitutionality of the section. The sole purpose of incorporating an association is to obtain recognition under the Act. The constitutionality of the section thus hinges not upon recognition, but upon the denial of the right to choose the employees' association. Kerans J.A. was originally correct when he held that the Act violated s. 2(d) of the Charter.

In summary, it is the very formation or changing of the employees' association which is restricted by s. 42(1)(b). To say that the association exists independently of its being incorporated under the legislation would be to denude the right granted by s. 2(d) of the Charter of any significance. The fact that the people who form the association (the union) may still meet together without interference from the state has no meaning if this association cannot be recognized under the relevant labour legislation. Section 42(1)(b) so restricts the freedom to form and change an association that it infringes the individual's right to associate protected by s. 2(d) of the Charter. Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his or her group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. Arbitrary or totally discretionary restrictions placed upon the employees' right to choose their association must prima facie violate the freedom of association.

Section 1 of the Charter

It remains to be determined whether s. 42(1)(b) can be saved as justifiable legislation under s. 1 of the Charter. The general principles which govern a s. 1 analysis have been enunciated in a number of decisions of this Court, particularly in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Oakes, [1986] 1 S.C.R. 103. These cases dictate a two-step analysis. First, the court must assess the importance of the objective underlying the impugned legislation; and secondly, it must determine whether the means employed to achieve the purpose of the legislation are proportional to that objective.

Legislative Objective

Section 42(1)(b) allows for the recognition of a union as an "employees' association" under the Act. The section does this through the "incorporation" of an association. This is comparable to the certification of a union in other jurisdictions.

The certification procedure is the foundation of any collective bargaining regime. George Adams in Canadian Labour Law: A Comprehensive Text (1985) wrote, at p. 309:

The certification process is at the heart of our system of collective bargaining and has a fundamental impact on labour relations . . . [M]odern collective bargaining laws were enacted to eliminate recognition conflicts. While an employer might voluntarily recognize a trade union as the bargaining representative of a coherent group of employees or "bargaining unit", collective bargaining laws create a statutory procedure for the administrative determination of the appropriate bargaining unit and the authorized employee representative.

By specifying who the bargaining agent for certain employees shall be, the legislation provides a structure within which collective bargaining may take place. Collective bargaining would be well nigh impossible if a large number of separate associations were all vying to represent the same employees. To avoid such a situation the legislation dictates the method by which an association may win recognition under the statute by being "incorporated" or "certified" as a bargaining agent. After it has been duly recognized, the association can then enter into negotiations with the employer.

It is important to note that the exclusive bargaining agency aspects of the scheme are not the result of recognition under the Act. Rather they are the result of a separate section which grants such a right to the certified union or employees' association. The issue as to whether a right to exclusive bargaining status should have constitutional protection thus does not arise in this case. That is an entirely separate and independent aspect of the legislative scheme. The sole question in the case at bar is whether a certain association should even be allowed an opportunity to participate in collective bargaining under the legislative scheme.

The objective of the Act is thus to provide the means of selecting a collective bargaining agent for the employees. The result of the selection process will inevitably be that not every employee's chosen association will achieve bargaining agent status. However, the necessity of having some structure to the process is of vital importance, and certainly of sufficient importance to warrant overriding a constitutionally protected right.

Proportionality

An analysis of the proportionality of the legislation involves a threefold assessment, namely (i) whether there is a rational connection between the approach used in the legislation and the objective it is meant to serve; (ii) whether the measure impairs as little as possible the right or freedom in question; and (iii) whether the deleterious effects of the legislation are justifiable in light of the objective it is meant to serve.

At the outset it may be helpful to compare s. 42(1)(b) with the enactments of other jurisdictions. If s. 42(1)(b) accomplishes the same task in a comparable manner to the other statutes, then there would be a strong argument for upholding the constitutional validity of the legislation. Such, however, is not the result.

The Canada Labour Code, R.S.C., 1985, c. L-2, outlines a certification procedure in ss. 25 to 31. Section 28 provides:

28. Where the Board

(a) has received from a trade union an application for certification as the bargaining agent for a unit,

(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and

(c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,

the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.

Section 29 states that the Board may, when only 35 to 50 per cent of the employees in a bargaining unit are members of the union, or at any other time, order a representation vote to be taken; and s. 31 states that the result of the vote will indicate the wishes of the majority of the employees in the unit.

Similar legislation is found in s. 7 of the Labour Relations Act, R.S.O. 1980, c. 228, as amended. That section states:

7. (1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

Comparable provisions are also found in The Labour Relations Act, R.S.M. 1987, c. L10, s. 40; Labour Code, R.S.B.C. 1979, c. 212, s. 43; Labour Relations Code, S.A. 1988, c. L-1.2, s. 37.

The similarity of these statutes was noted by George Adams in his text Canadian Labour Law. At page 309 he stated:

There is a broad similarity across Canada in these procedures, although different emphasis may be placed on the utilization of membership cards and representation votes as methods of determining the wishes of employees. All of the statutes provide for a bargaining representative to be chosen by "the majority of employees in a unit appropriate for collective bargaining". Labour boards, in most instances, have been given the responsibility to determine the appropriate bargaining unit and the wishes of the employees.

That these certification procedures closely resemble each other is, I believe, due to three important concepts which are inscribed in all of the labour relations Acts. First, the certification procedures are conducted by an independent third party, such as the provincial or the Canada Labour Relations Board. The certification procedure is thus not controlled by either party to the negotiations. Secondly, the independent third party considers the wishes of the employees in the potential bargaining unit. If a majority, or at least a substantial number, of the employees are members of the union applying for certification, or wish that union to be their bargaining agent, then the union must be certified by the Board acting as the independent agency. Thirdly, except in the Labour Relations Act, 1977, S.N. 1977, c. 64, s. 37(2), the process of certification is mandatory upon the fulfillment of the stated requirements. The legal recognition of the union under the legislation is therefore not left to the discretion of either of the potential bargaining parties, or even to the discretion of the independent third party Board.

The statutes of other jurisdictions outline a very reasonable compromise between the rights of the individual employee and the necessity of having a structured collective bargaining process. They set out a procedure whereby if individuals form an association which meets the listed criteria, then that association will be recognized as their bargaining agent. The individual employees in each case will have had a reasonable opportunity to select the bargaining agent of their choice pursuant to a fair process by means of which they may attempt to obtain recognition for their chosen bargaining agent.

The fairness of the process and the value of the individual choice is also reflected in the decertification procedures set out in these statutes. Decertification allows the individual employees to oust the present bargaining agent and to replace it with one of their own choosing. For example, ss. 38(1) and 39(1) of the Canada Labour Code state:

38. (1) Where a trade union has been certified as the bargaining agent for a bargaining unit, any employee who claims to represent a majority of the employees in the bargaining unit may, subject to subsection (5), apply to the Board for an order revoking the certification of that trade union.

39. (1) Where, on receipt of an application for an order made under subsection 38(1) or (3) in respect of a bargaining agent for a bargaining unit, and after such inquiry by way of a representation vote or otherwise as the Board considers appropriate in the circumstances, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to have the bargaining agent represent them, the Board shall, subject to subsection (2), by order,

(a) in the case of an application made under subsection 38(1), revoke the certification of the trade union as the bargaining agent for the bargaining unit; or

(b) in the case of an application made under subsection 38(3), declare that the bargaining agent is not entitled to represent the employees in the bargaining unit.

Analogous decertification provisions are found in the labour relations statutes of all of the other Canadian jurisdictions.

In sum, it can be seen that most of the collective bargaining statutes of the other Canadian jurisdictions provide a fair and reasonable process whereby individual employees may try to form associations to represent them, and may try to change associations which they deem to be inappropriate or ineffective. The statutes seem to strike a very reasonable balance between the rights of the individual, the union and the employer. It is a balance that should not be disturbed.

This brief review of comparable legislation indicates clearly that the Public Service Act fails to achieve such a reasonable balance. It does not provide for any process by which the wishes of the employees may be determined. The incorporation of the employees' association can only be attained by the exercise of an untrammelled governmental discretion. It is significant that this discretion is not to be exercised by an independent third party, but by the government itself, a vitally interested party to the ensuing collective bargaining. The Act is clearly very different from the labour relations statutes in all of the other jurisdictions.

In order to create a structured collective bargaining process for employees in the Northwest Territories it is not necessary to give the government complete control over the designation of the employees' bargaining agent. This denial of the employees' right to select their own bargaining agent in the manner contemplated in other jurisdictions cannot be justified as a reasonable limit under s. 1. It is out of proportion to the objective sought to be achieved and restricts the employees' freedom of association far more than is reasonably necessary.

Section 42(1)(b) of the Public Service Act therefore cannot be justified under s. 1 of the Charter and it must be declared to be unconstitutional.

In the result, I would allow the appeal and strike down s. 42(1)(b) of the Public Service Act.

I would answer the constitutional questions as follows:

1.Does s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?

Answer: Yes, in so far as s. 42(1)(b) is concerned.

2.If the answer to question 1 is in the affirmative, can s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: No, in so far as s. 42(1)(b) is concerned.

//La Forest J.//

The following are the reasons delivered by

LA FOREST J. -- I have had the advantage of reading the reasons of my colleagues Sopinka and Cory JJ. With respect, I am in general agreement with Sopinka J. and would dispose of the case and answer the constitutional questions in the manner proposed by him. I find it unnecessary, however, to say anything about whether the right of association must include the freedom of persons to join together in pursuit of objects they could lawfully pursue as individuals.

//L'Heureux-Dubé//

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. -- I have read the opinion of my colleague Sopinka J. and while I agree both with the reasons and result reached by him, I would like to add some brief comments of my own. For ease of reference I will reproduce s. 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended:

42. (1) In sections 42 to 46

(b)"employees' association" means an association of public service employees incorporated by an Act empowering it to bargain collectively.

This section is attacked as infringing the freedom of association protected by s. 2(d) of the Canadian Charter of Rights and Freedoms.

The measure of protection afforded by s. 2(d) has been the subject of recent debate by this Court. In R. v. Skinner, [1990] 1 S.C.R. 1235, I concurred with Wilson J. who, dissenting on other grounds, set out the proper scope of the freedom of association. At page 1249 of her reasons she states:

Second, in deciding whether a given activity is protected by s. 2(d) of the Charter, the focus must be on whether one person seeks to associate with another, not on the nature of the activities or goals that they wish to pursue in common. The actual activities the individuals wish to pursue in common are not, according to the majority in that case [Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313], protected by s. 2(d). Only the coming together is protected. In this respect McIntyre J.'s observations are consistent with the approach this Court has taken to other freedoms embodied in s. 2 of the Charter. [Emphasis added.]

She makes it clear that the objects, purposes or activities which the association may wish to accomplish or pursue are irrelevant for Charter purposes.

These statements, in my opinion, determine the result in the case before us. The impugned legislative provision in this case does not burden the appellant's freedom of association. While one of the primary goals of employee associations is to attain the status of bargaining agent and to bargain collectively, the attaining of this status, its retention and the association's subsequent activity are by no means protected under the rubric of s. 2(d). In my opinion, this conclusion accords with the reasoning of the majority in the trilogy of "right to strike" cases (Reference Re Public Service Employee Relations Act (Alta.), supra; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, and PSAC v. Canada, [1987] 1 S.C.R. 424). Le Dain J. in the Alberta Reference explicitly rejected the broad formulation of the freedom suggested by the minority. At page 390 he states:

I agree with McIntyre J. that the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal . . .

I feel bound by the majority decisions in the trilogy.

On a more pragmatic level, serious consequences follow on a finding that s. 2(d) applies in the present case. At page 000 my colleague Cory J. provides examples of what are, in his opinion, infringements of the freedom of association. With respect, these examples, and his ultimate conclusions in the present case, do not, in my view, accord with the holdings of the majority in the trilogy and bring into sharp contrast the broad nature of the freedom he envisions. It is always the case, or at least generally so, that the objects of an association are pivotal to its existence. On a narrow reading of his reasons, incorporation and certification requirements would always be suspect. On a broader reading, any object of an association whose fulfillment is fundamental to the existence of the association would be protected. Section 2(d) was never meant, in my opinion, to protect this broad range of activity. Though the pursuit of them may be lawful, the objects of some associations may be either sexist or racist or in some other fashion contemptible. To my mind it is difficult to suggest that the freedom envisaged by s. 2(d) was ever meant to embrace these objects. The practical implications of such an approach militate strongly against its adoption. Le Dain J. in the Alberta Reference even rejects a labour relations exemption. At pages 390-91 he sets out the proper context within which an interpretation of the freedom should occur:

In considering the meaning that must be given to freedom of association in s. 2(d) of the Charter it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

Adopting this line of reasoning does not, however, leave unions powerless to achieve their objectives. Even on this analysis a broad range of union activity is protected. In addition, as Paul Cavalluzzo points out in his article "Freedom of Association -- Its Effect Upon Collective Bargaining And Trade Unions" (1988), 13:2 Queen's L.J. 267, unions have access to the political process. At page 272 he remarks:

From a trade union perspective, the "collective bargaining trilogy" may be a blessing in disguise for a number of reasons. First, these cases re-affirm that trade unions should be expending their time, energy and resources in the legislative arena in order to advance their interests. . . .

The second positive result from a trade union viewpoint is that the trilogy indicates that collective bargaining rights are statutory and not constitutional rights protected by s. 2(d) of the Charter. As such, the content of collective bargaining laws is a matter for the legislature and not the courts.

While s. 42(1)(b) of the Act may affect the ability of an association to gain recognition and therefore to bargain on behalf of employees, it does not fetter the activity recognized and protected by the Charter, the associational activity of one person with another. My colleague Cory J. states on p. 000 that "[t]he needs of the employees are only known by them, and they should have the right to choose the association which can best represent their needs." They have. The legislation perhaps does not represent the best balance of the interests involved, but as it strikes at no activity protected by the Charter, the legislative choice in this regard must remain intact.

I would therefore answer the constitutional questions in the manner proposed by Sopinka J.

//Sopinka J.//

The following are the reasons delivered by

SOPINKA J. -- The issue in this appeal is whether s. 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, is inconsistent with s. 2(d) of the Canadian Charter of Rights and Freedoms. The appellant contends that, in requiring that an employees' association be incorporated by an Act empowering it to bargain collectively, the impugned section violates the freedom of association. Resolution of this issue involves a determination of the reach of this Court's decision in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ("the Alberta Reference"). That case determined, inter alia, that s. 2(d) does not protect the right to strike. The appellant in the present appeal argues, however, that s. 2(d) extends to other aspects of collective bargaining.

The Facts

The appellant, the Professional Institute of the Public Service of Canada ("the Institute"), is a federally incorporated non-profit corporation, and the certified bargaining agent for various groups of professionals employed by the federal government. Prior to September 1, 1986, the Institute was the bargaining agent for 32 nurses employed by the federal government in the Baffin Zone of the Northwest Territories. On that date the responsibility for health care programs in the Baffin Zone was transferred from the federal government to the Government of the Northwest Territories. The nurses were notified that their employment with the federal government would be terminated on August 29, 1986, and that they could elect to become employees of the Government of the Northwest Territories on September 1, 1986. A consequence of the nurses' change of employment from the federal to the territorial government was that they ceased to belong to the bargaining unit on behalf of which the Institute had been certified to bargain collectively, and they became eligible for membership in the respondent Northwest Territories Public Service Association ("the NWTPSA"), the employees' association that had been incorporated to bargain collectively on behalf of all non-excluded territorial employees by the Northwest Territories Public Service Association Act, R.S.N.W.T. 1974, c. N-2, pursuant to s. 42(1)(b) of the Public Service Act.

The Institute sought incorporation within the meaning of s. 42(1)(b) for the purposes of representing its former members, but the Government of the Northwest Territories declined to enact the required legislation. In a letter to the President of the Institute, the Government Leader of the Northwest Territories indicated that it was his view that the needs of professionals in the territorial public service were "being met through the associations certified through the existing legislation . . . ." An earlier attempt by the Institute to persuade the territorial government to grant it bargaining status had failed on the basis that there had not been any evidence of employee support for the Institute. There is on the present record no evidence that a substantial number, or any, of the 32 affected nurses wish to be represented by the Institute for the purposes of collective bargaining with the territorial government. The territorial government has a current collective agreement with its employees.

The Legislation

Section 2(d) of the Charter reads as follows:

2. Everyone has the following fundamental freedoms:

(d)freedom of association.

The relevant provisions of ss. 42 and 43 of the Public Service Act (hereinafter "the Act") read as follows:

42. (1) In sections 42 to 46

(b)"employees' association" means an association of public service employees incorporated by an Act empowering it to bargain collectively.

(2) The Commissioner may enter into a collective agreement with an employees' association.

(6) A collective agreement between the Commissioner and an employees' association shall be binding on the Commissioner, the employees' association and the members of such association.

43. (1) An employees' association on behalf of its members or the Commissioner may, by written notice, require the other party to commence bargaining collectively with a view to the conclusion, renewal or revision of a collective agreement.

(2) Where notice to bargain collectively has been given, the employees' association and the officers designated to represent the Commissioner shall, without delay but in any case within sixty days after the notice has been given or within such further time as the parties may agree, meet and commence to bargain collecively [sic] in good faith.

The Proceedings Below

On June 12, 1986, the Institute launched an application for a declaration that s. 42(1) of the Act and s. 3 of the Northwest Territories Public Service Association Act are inconsistent with s. 2(d) of the Charter, and therefore of no force or effect. The NWTPSA obtained status as a party respondent and brought a preliminary motion to challenge the Institute's standing, which was dismissed. The dismissal of that motion was not appealed.

Marshall J. of the Supreme Court of the Northwest Territories heard the Institute's motion at first instance (43 D.L.R. (4th) 472), and took the view, at p. 474, that the effect of the impugned legislation ". . . is to require a union, in this case the Institute, to obtain incorporation, or as the applicant calls it, `a statutory charter' as a precondition to seeking the right to bargain collectively". In response to the argument that this Court's judgment in the Alberta Reference was controlling, Marshall J. distinguished the case in the following terms, at p. 476:

The Supreme Court dealt with the issue of whether a particular activity of an association, in pursuit of its objectives, was constitutionally protected or left to be regulated by the legislature. Here, in contrast, the issue is not the activity of the Association but its recognized existence, or, to use the words of the impugned statute, `incorporation'.

Marshall J. found, therefore, that s. 42(1) of the Act violated s. 2(d) of the Charter. He found, further, at p. 478, that the section was not a reasonable limit within the meaning of s. 1 of the Charter, on the basis that there had been

. . . no evidence that the government's objective of orderly and representative collective bargaining could not be achieved by a system of independent certification based on objective criteria, as has been established in other jurisdictions.

The Commissioner of the Northwest Territories appealed to the Court of Appeal for the Northwest Territories. Kerans J.A., speaking for the court ([1988] N.W.T.R. 223), held first that the words of s. 42(1)(b) denote the creation of a union, not merely its recognition. He stated, at p. 228: ". . . recognize' is not a meaning that incorporate' can reasonably bear. It is not my function to make words dance." Kerans J.A. then considered the question whether it would be necessary to read the statute in accordance with such an interpretation if that interpretation would lead to invalidity. He set out four conditions which, he said, must be met before a court may fill in a legislative gap: (1) the problem arose only by legislative oversight; (2) the change is that which the legislature would have made had it addressed the issue; (3) no harm would be done by the proposed change to legal rights created by the legislation; and (4) harm would be done to legal rights created by the statute if the change were not made. Kerans J.A. held that these conditions were met in the present case, and that if s. 42(1)(b) were otherwise to be declared invalid, he would read the word "recognized" into the section.

Kerans J.A. proceeded to analyze the impugned section on two separate bases: first, whether the section's failure to provide for a certification and decertification procedure violates s. 2(d) of the Charter; and second, whether the requirement of legislative incorporation (as interpreted by Kerans J.A.) violates s. 2(d).

After a review of this Court's judgment in the Alberta Reference, Kerans J.A. held, at p. 231, that the right to certification contended for by the Institute was ". . . another example of particular activity in pursuit of the goal of collective bargaining that is a mere creation of statute." Kerans J.A. likened the certification of a union to a licence, and held that the ". . . seeking of a licence is not an organizational activity; rather, it is the common pursuit of a goal." In other words, the ability to be certified as of right does not affect the organizational character of the association.

Concerning the Institute's arguments on incorporation, Kerans J.A. held that the impugned section, according to his interpretation of its words as enacted, allowed the government to give or deny legal existence to a union. Kerans J.A. stated, at p. 233:

Notwithstanding, then, that the pursuit of certification is not itself a protected activity, if a law requires of the pursuers that they organize themselves in a certain way, then the law is meddling in organization activity, and the Charter is engaged. That is this case. [Emphasis in the original.]

Thus the court below found that s. 42(1)(b), as enacted, "might bear on freedom of association". Kerans J.A. held further that if this were so, the limit on s. 2(d) of the Charter could not be saved by resort to s. 1, because "the limit is acknowledged to be unnecessary and capricious and the result of legislative oversight". However, using the interpretive approach he described earlier in his judgment, Kerans J.A. salvaged the validity of s. 42(1)(b), at p. 233, by reading the words "or recognized" into the section after the word "incorporated". The appeal was accordingly allowed.

The Issues

The following constitutional questions were stated by the Chief Justice on August 3, 1989:

1.Does s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?

2.If the answer to question 1 is in the affirmative, can s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

The Attorneys General of Canada and Ontario intervened to support the constitutionality of s. 42(1).

In addition, the respondent NWTPSA raised an issue as to the standing of the Institute in these proceedings.

Standing

Counsel for the NWTPSA made submissions both in the court below and in this Court that the Institute ought not to be granted standing to challenge the constitutionality of s. 42(1) of the Act. Kerans J.A. observed, at p. 226 of his judgment, that the decision on the respondent NWTPSA's unsuccessful preliminary motion attacking the Institute's standing was never appealed. In the proceedings before this Court, the NWTPSA did not file a cross-appeal to raise the issue squarely.

Where the standing of a party is attacked, the courts retain a discretion to decide substantive issues that are fully argued. In Smith v. Attorney General of Ontario, [1924] S.C.R. 331, Duff J. (as he then was) stated for the majority, at p. 338:

. . . the question [of the appellant's standing] is an arguable one; and, as the merits of the appeal have been fully discussed, we are loath to give a judgment against the appellant solely based upon a fairly disputable point of procedure; and accordingly we think it right to say that in our opinion the appellant's action also fails in substance.

More recently, in Jamieson v. Attorney-General of British Columbia (1971), 21 D.L.R. (3d) 313 (B.C.S.C.), Aikins J. summarized the principle in words which I would respectfully adopt, at p. 323:

. . . where a case has been fully argued on the merits then, notwithstanding that in the general argument it may appear that the plaintiff has no status to maintain the action, if the question involved is one of public importance then the Court has a discretion to decide the case on the merits.

In the circumstances of the present case, which include the NWTPSA's failure to appeal its preliminary motion in the court below and cross-appeal in this Court, it will not be necessary to consider the arguments on standing. Even if I had been inclined to accede to those arguments, this would have been a proper case to exercise the discretion to decide the substantive issues on their merits. The case clearly raises a question of public importance (if it did not, leave to appeal would not have been granted). Moreover, the respondent Commissioner conceded the appellant's standing, and the issues were fully argued by the parties, including the intervening Attorneys General, in response to the constitutional questions stated by the Chief Justice.

This case is, in an important respect, very different from Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, in which the appellant had been granted standing to challenge the constitutionality of specific legislation. The foundation for Borowski's standing was removed by a decision of this Court, subsequent to the grant of standing but prior to the hearing of his appeal, which struck down the impugned legislation on different grounds: R. v. Morgentaler, [1988] 1 S.C.R. 30. Although Borowski's appeal was fully argued on the merits, the reason for the ultimate ruling that he lacked standing militated against expressing a view on the merits: the very legislation he sought to attack no longer existed, and a judicial decision in the circumstances would have amounted to a private reference. Such considerations do not arise in the present case, and for the above reasons I would prefer not to express a view on the Institute's standing to challenge the constitutionality of s. 42(1) of the Act.

The Alberta Reference

Before dealing with the specifics of this case, it is necessary to undertake a review of this Court's judgment in the Alberta Reference, the first of the trilogy of cases on the s. 2(d) Charter guarantee of freedom of association decided in April 1987: see also PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. The question arising from the judgments in the Alberta Reference is whether and to what extent any aspects of collective bargaining attract the protection of s. 2(d). To answer this question, crucial to the disposition of the case at bar, a close reading of the judgments in the Alberta Reference (i.e., Dickson C.J., dissenting, speaking for himself and Wilson J.; Le Dain J. speaking for himself and Beetz and La Forest JJ.; and McIntyre J. speaking for himself) is called for.

Upon considering the various judgments in the Alberta Reference, I have come to the view that four separate propositions concerning the coverage of the s. 2(d) guarantee of freedom of association emerge from the case: first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.

The first proposition, that s. 2(d) protects the freedom to establish, belong to and maintain an association, received unanimous support in the Alberta Reference: see Dickson C.J. at p. 363, Le Dain J. at p. 391, and McIntyre J. at p. 407. Any governmental restriction on the formation of or membership in associations would fall afoul of this aspect of s. 2(d), which may safely be regarded as the narrowest conception of the freedom of association.

Concerning the second proposition, Le Dain J. described as "sweeping" the view that s. 2(d) was meant to protect an activity on the ground that the activity is essential to the existence of the association. Le Dain J., at p. 391, rejected the underlying premise of that view: ". . . that without such additional constitutional protection the guarantee of freedom of association would be a meaningless and empty one." Similarly, McIntyre J. refused to adopt this view of s. 2(d), on the ground that it is contrary to the individual nature of freedom of association. He stated, at p. 404:

To accept it would be to accord an independent constitutional status to the aims, purposes, and activities of the association, and thereby confer greater constitutional rights upon members of the association than upon non-members.

The third proposition, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals, finds its support in the following passage in Le Dain J.'s judgment, at p. 391: "Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion." It is significant that the freedoms enumerated by Le Dain J. in the quoted passage are the Charter-protected freedoms (ss. 2(b) and (a), respectively) that are most likely to be exercised in association with others. The portion of McIntyre J.'s judgment that bears upon this second proposition is found at p. 407:

It is, I believe, equally clear that . . . freedom of association should guarantee the collective exercise of constitutional rights. Individual rights protected by the Constitution do not lose that protection when exercised in common with others.

The fourth proposition, that s. 2(d) protects the exercise in association of the lawful rights of individuals, is perhaps the most controversial of the four, since it was not mentioned explicitly by half of the Court, speaking through Le Dain J. However, Dickson C.J. (dissenting, Wilson J. concurring) held, at pp. 366-67, that s. 2(d) must protect an activity done in association with others if the activity is permitted when done by an individual. McIntyre J. also adopted this approach, at pp. 408-9, and emphasized that the legislature retains control over the range of Charter-protected activity by determining what activities are legally permitted for individuals. In my view, this fourth proposition follows from the first. If the freedom to establish, belong to and maintain an association is to have any meaning, it must include the freedom of individuals to join together in pursuit of objects they could lawfully pursue as individuals. A restriction on the collective exercise of an activity legally permitted to individuals is essentially an attack on the ability of individuals to establish an association for that purpose. As Dickson C.J. pointed out in the Alberta Reference, at p. 367, such an attack is aimed at the "collective or associational aspect" of the activity, and not the activity itself.

The above propositions concerning s. 2(d) of the Charter lead to the conclusion, in my opinion, that collective bargaining is not an activity that is, without more, protected by the guarantee of freedom of association. Restrictions on the activity of collective bargaining do not normally affect the ability of individuals to form or join unions. Although collective bargaining may be the essential purpose of the formation of trade unions, the argument is no longer open that this alone is a sufficient condition to engage s. 2(d). Finally, bargaining for working conditions is not, of itself, a constitutional freedom of individuals, and it is not an individual legal right in circumstances in which a collective bargaining regime has been implemented: see McIntyre J. in the Alberta Reference, at pp. 411-12. Apart from the reasons given in the Alberta Reference, the conclusion that collective bargaining does not fall within s. 2(d) accords with the results in the s. 2(d) trilogy of cases. In those cases, this Court upheld not merely restrictions on the right to strike, but also the imposition of binding arbitration without negotiation, and the imposition of terms of employment without negotiation. It is difficult, therefore, to conceive of a principle that could bring other aspects of the collective bargaining relationship within the purview of s. 2(d), and yet not overrule the trilogy.

Turning to the merits, I find it convenient to consider the appellant's arguments along the two lines suggested in Kerans J.A.'s judgment: first, the absence in s. 42(1)(b) of a process for union certification; and second, the requirement in s. 42(1)(b) that a union be "incorporated" for the purposes of collective bargaining.

Pursuit of Certification

By virtue of ss. 42 and 43 of the Act, the only unions that are entitled to compel the Commissioner to bargain collectively are those "employees' associations" sanctioned by an Act of the territorial legislature. This differs from other Canadian labour relations legislation, in which specific conditions are set out for the certification of a union as the exclusive bargaining agent for its members, and for the potential decertification of a union previously certified: see e.g. Public Service Staff Relations Act, R.S.C., 1985, c. P-35; Labour Relations Act, R.S.O. 1980, c. 228; The Trade Union Act, R.S.S. 1978, c. T-17.

The appellant argues that the absence in the legislation of a set of objective conditions for the certification of a union is a violation of s. 2(d) of the Charter. The argument is that, apart altogether from the incidents of incorporation under the Act, the statutory monopoly granted to the NWTPSA interferes with the associational rights of those individuals in the bargaining unit who may wish to be represented by a different union. Since the legislation prevents a rival union that has not received legislative approval from bargaining for its members, such a union's objects and purposes are frustrated. The appellant submitted in its factum that: "The very definition of a trade union includes the purpose with which . . . the impugned legislation has interfered."

As is clear from my earlier review of the Alberta Reference, however, it is precisely this sort of claim that has been rejected by the majority of this Court. It is simply no longer open to an association (union or otherwise) to argue that the legislative frustration of its objects is a violation of s. 2(d) if the restriction is not aimed at and does not affect the establishment or existence of the association -- unless the association's activity is another Charter-protected right, or an activity that may lawfully be performed by an individual. Putting the incorporation point aside for the moment, it is plain that the statutory monopoly created by s. 42(1)(b) has no effect on the existence of the Institute or the ability of any individual to be a member of the Institute; and it is equally plain that, as a result of the Alberta Reference, the activity for which constitutional protection is sought (collective bargaining for working conditions) satisfies neither of the tests for protected activity.

Ultimately, the appellant's arguments on the failure of this legislation to provide for certification as of right founder on the fact that since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer. The impugned provisions amount to nothing more than a legislated form of a labour relations regime based upon voluntary recognition. It is conceded that this is a well-recognized form of labour relations. The relevant difference is that by virtue of the Act the recognized union or unions are empowered to compel the Commissioner to bargain collectively in good faith toward a binding agreement, a power that no group of employees possesses at common law. Given that a government has no common law obligation to bargain at all and can suspend a statutory obligation to bargain altogether, as the federal government did in PSAC, it would be inconsistent now to hold that associational rights are created when a government grants employees the right to bargain but reserves to itself the power to choose the form of the employees' representative; that is to say, if a government does not have to bargain with anyone, there can be no constitutional impediment to its choosing to bargain with someone.

All of the foregoing is premised upon the assumption that s. 42(1)(b) of the Act does not impair the freedom to establish, belong to or maintain an association. It is necessary now to examine that assumption in light of the appellant's submissions that the requirement of incorporation in s. 42(1)(b) constitutes just such a violation of s. 2(d).

Incorporation Requirement in Section 42(1)(b)

For ease of reference, I reproduce the text of s. 42(1)(b) of the Act, as follows:

. . . "employees' association" means an association of public service employees incorporated by an Act empowering it to bargain collectively.

The appellant submits that the effect of s. 42(1)(b) is to subject a public service union to a requirement of legislative creation, without which such a union has no existence. If this is so, the impugned section clearly interferes with an individual's freedom to form and belong to an association, something that this Court unanimously held in the Alberta Reference to be a s. 2(d) violation: see supra. This argument found favour with Kerans J.A. in the court below. Kerans J.A., at p. 232, adopted the Institute's submission that s. 42(1)(b):

. . . requires that the territorial council, and not the employees themselves, be the final arbiter of the constitution of [an employees' association incorporated under the Act], and decide sensitive questions like what shall be the scope of its objects, what the membership terms will be, what the rules for internal governance shall be, and, perhaps most importantly, whether it shall be a legal entity. [Emphasis in the original.]

As a consequence of this interpretation of s. 42(1)(b), Kerans J.A. considered it necessary to read the words "or recognized" into the section, in order to preserve its constitutionality. The appellant argues that this use of the technique of "reading in" is not a permissible exercise of a court's powers in constitutional adjudication. The respondent Commissioner places no reliance on this aspect of Kerans J.A.'s judgment, and submits that the section, as written, has no effect on the existence or constitution of an employees' association incorporated pursuant to it. In my opinion, this appeal can be decided without resolving the difficult question whether we should read words into a statute to bring it into conformity with the Charter.

The central question in this part of the appeal is whether the word "incorporated" in s. 42(1)(b) denotes the creation of a public service union. The appellant argues forcefully that the very existence of a public service union in the Northwest Territories depends upon the legislative fiat of incorporation pursuant to s. 42(1)(b). The respondent Commissioner denies this contention, and argues that nothing in the impugned section affects the existence, membership or maintenance of any association.

Upon considering the words of the impugned section, I find myself in agreement with the respondent. I observe that s. 42(1)(b) does not prohibit the establishment of or membership in other unions, and it does not prevent any such union from seeking incorporation under the Act. Moreover, the impugned section does not prescribe the prerequisites or the incidents of incorporation. Contrary to the view expressed by Kerans J.A., the section does not require that an employees' association incorporated under the Act be constituted in a particular way or that it submit the scope of its objects, terms of membership or rules of internal governance to legislative control. The territorial government could, it seems to me, enact legislation deeming the Institute or any other pre-existing union to be an employees' association for the purposes of the Act without altering the organizational structure of the union in any way. Seen in its context, the requirement of incorporation in s. 42(1)(b) is the means by which the territorial government has chosen to recognize the union or unions with which it will bargain collectively, and upon which it will grant the power to compel the government to bargain in good faith toward a binding agreement. As I have said, if a government can abridge collective bargaining entirely without constitutional impediment it would seem anomalous to place constitutional obstacles in the way of a government seeking to make collective bargaining available to its employees.

I do not wish, however, to be taken as sanctioning the view that where a government confers a benefit it is entitled to attach whatever conditions it pleases to the receipt of the benefit. Any such conditions must themselves pass constitutional muster. It seems obvious, for example, that a government could not grant collective bargaining rights on a basis that would contravene the equality rights guarantees contained in s. 15(1) of the Charter. Similarly, a grant of collective bargaining rights must account for the associational rights of affected individuals; but, in view of the trilogy, this means nothing more than permitting rival associations to exist and vie for recognition. The legislation impugned in the present case does not, as I have said, affect the Institute or any other union in a manner that could infringe s. 2(d) of the Charter, and the Institute's arguments in this regard must fail.

Disposition

I would dismiss the appeal with costs to the respondents, and answer the constitutional questions as follows:

1.Does s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?

Answer: No.

2.If the answer to question 1 is in the affirmative, can s. 42(1) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, as amended, be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is not necessary to answer this question.

Appeal dismissed, WILSON, GONTHIER and CORY JJ. dissenting.

Solicitors for the appellant: Nelligan/Power, Ottawa.

Solicitor for the respondent the Commissioner of the Northwest Territories: The Department of Justice, Yellowknife.

Solicitors for the respondent the Northwest Territories Public Service Association: Soloway, Wright, Ottawa.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

• Chief Justice at the time of hearing.