Section 2(d)

s. 2 Everyone has the following fundamental freedoms:

(d) freedom of association

Section 2(d) protects your freedom to form associations. This is a necessarily collective right and is mainly public in nature. As such, rights under section 2(d) do not extend to family members or other personal relationships (Catholic Children’s Aid Society of Metropolitan Toronto v S (1989), 69 O.R. (2d) 189 (Ont CA)).

Section 2(d) and Collective Bargaining

Section 2(d) includes a right to collective bargaining. It protects the ability of workers to engage in associational (collective) activities, and to act together to reach a common goal. Collective bargaining is arguably the most significant collective activity through which freedom of association is expressed. It enhances the value of equality and democracy in the workplace, and it ensures the dignity, liberty, and autonomy of workers by providing them with the opportunity to influence their working conditions. Because the Charter only applies to government actors, section 2(d) can only be triggered by government action. This would include enacting unlawful legislation, or situations where the government is your employer. Private employers are not bound by section 2(d). The right to collective bargaining guarantees a process, not a result. The government is not required to guarantee that a certain result will come from collective bargaining (Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016 at 67). Section 2(d) also includes the freedom not to associate, particularly when an association imposes “ideological conformity” on its members (Lavigne v Ontario Public Service Employees Union, [1991] 2 SCR 211)

The Test

Section 2(d) protects collective activity against “substantial interference” from government action. Two questions must be asked when determining whether a government action counts as substantial interference (Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 at 93):

1. Does the government action affect something important to the process of collective bargaining?
2. If yes, does the government action impact your right to good faith negotiation and consultation?

For the first question, the main inquiry is whether the interference will prevent unions from pursuing common goals collectively. For example, laws or actions that prevent unions from participating in meaningful discussions about working conditions. On the other hand, laws or actions regarding things like uniforms or parking would not be considered a significant interference. Even if there is interference with an important matter, there will not be a violation of section 2(d) unless the government action also interferences with the ability of unions to consult and negotiate in good faith. The concept of “good faith” in collective bargaining includes, but is not limited to:

• recognizing representatives,
• attempting to reach an agreement,
• engaging in constructive negotiations,
• avoiding unnecessary delays, and
• committing an appropriate amount of time to meetings.

If you think your rights under section 2(d) have been breached, click here to determine if that breach was unjustifiable and unreasonable. back