Court finds same test applies to both positive and negative rights claims under s. 2(d) of Charter
The Supreme Court of Canada has found that the exclusion of Quebec casino managers from the province’s general collective labour relations regime is not a violation of Charter-protected free association rights.
The SCC’s decision in Société des casinos du Québec inc., et al. v. Association des cadres de la Société des casinos du Québec, et al. came down Friday morning. The lower courts had produced conflicting opinions on whether the applicable test differed for claims that that the state is indirectly violating the right to freedom of association – in this case by excluding the claimant from collective bargaining legislation – and claims that the state is directly interfering with that right.
A majority clarified that the same test applies to both positive and negative rights claims under s. 2(d) of the Charter, which protects free association.
The Canadian Civil Liberties Association intervened in the case arguing that the same test should apply to both types of s. 2(d). claims. The CCLA submitted that workers under labour relations schemes such as Quebec’s Labour Code are vulnerable to employers interfering in their associations. In these cases, said the CCLA, the question should not be whether the workers are asserting a positive or negative rights claim, but whether the law “substantially interferes” with freedom of association, “in purpose or effect.”
“The majority held the line on there being only one test,” says Catherine Fan, counsel for the CCLA. “Claimants asserting a positive right don't have to meet a higher threshold.”
"We were pleased to see that the court re-affirmed that claimants who are excluded from collective bargaining regimes do not bear a separate and higher legal onus, though in practice the Court’s decision is disappointing to the extent it suggests that it will still be hard for them to establish that being relegated to the common law or Civil Code scheme is a breach of their s. 2(d) rights."
In 2009, the Association des cadres de la Société des casinos du Québec tried to get certified under the Administrative Labour Tribunal, as it is now called, under s. 25 of Quebec’s Labour Code. The association represents, what the SCC called “first level managers,” who work in the gaming sector. The association requested that the exclusion of these managers from the definition of “employee,” and thereby from enjoying the benefits of the Labour Code, be declared unconstitutional. The Association argued that the exclusion violated the guarantee of freedom of association under s. 2(d) of the Charter and s. 3 of the Quebec Charter.
The tribunal ruled in their favour. Assessing the claim as a denial of rights by the state, the Tribunal applied the test determining whether government action substantially interfered with the managers’ free-association rights from Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, finding the exclusion unjustifiably infringed their freedom of association.
The Superior Court reversed the decision, finding that the association was arguing that the state had a positive obligation, and that their claim should be analyzed under Dunmore v. Ontario (Attorney General), 2001 SCC 94. The court decided the association failed to show the violation against its members’ rights.
The Court of Appeal restored the tribunal’s decision, applying Mounted Police.
The SCC’s majority, Justices Andromache Karakatsanis, Nicholas Kasirer, Mahmud Jamal and Michelle O’Bonsawin, agreed with the Superior Court’s findings and ruled that Dunmore is the only applicable framework determining whether government has violated s. 2(d).
Dunmore’s two-step test examines whether the activity falls within the scope of the Charter’s freedom-of-association guarantee, and whether the government action interferes with Charter-protected activity in purpose or effect.
The majority said the sole threshold for evaluating a s. 2(d) claim is the threshold of substantial interference. They also said that the SCC’s jurisprudence did not create two tests for s. 2(d) violations, one for claims seeking positive state intervention and the other for claims seeking negative protection against state interference. According to the majority, that distinction applies to s. 2(b) claims – freedom of expression – but not s. 2(d) claims.
Applying Dunmore, the majority found the association’s claim did not involve activity protected under s. 2(d) of the Charter, and that the legislature’s purpose in excluding managers from the definition of “employee” under the Labour Code was not to interfere with their s. 2(d) rights. The legislature’s purpose, they said, was to distinguish between management and operations, avoid putting managers in a conflict of interest for collective bargaining, and to allow employers confidence that their managers would represent their interests. The association failed to persuade the majority that the legislative exclusion substantially interfered with their ability to collectively bargain meaningfully.
Justices Richard Wagner and Suzanne Côté disagreed that it did not matter whether a claimant in a s. 2(d) case sought a positive state intervention or a negative protection from state interference. Dunmore is “better suited” to positive claims, they said. Wagner and Côté agreed, however, that the association’s exclusion was constitutional.
Justice Malcolm Rowe wrote his own set of reasons. Rowe said that Charter violations giving rise to negative claims are fundamentally different from Charter violations giving rise to positive claims and require different standards of analysis. He said that Dunmore was specifically designed for positive claims.
