Corps de l’article

Introduction

The Agricultural Employees Protection Act, 2002 (AEPA)[1] is an Ontario statute that regulates labour relations for farm workers, who are excluded from unionizing under the Labour Relations Act, 1995 (LRA).[2] The AEPA has a fraught history, given its explicit purpose in excluding farm workers — often racialized migrants in Canada — from access to the robust rights and protections afforded through unionization. The AEPA was initially created following the Supreme Court of Canada’s decision in Dunmore v Ontario (AG),[3] which held as constitutionally invalid the exclusion of farm workers from access to unionization under the provincial LRA without an alternative legislative scheme in place. Since then, the AEPA has been subject to multiple constitutional challenges at the Supreme Court of Canada, often following new pronouncements on the scope and content of subsection 2(d) of the Canadian Charter of Rights and Freedoms (the Charter).

A first challenge to the AEPA was laid to rest in the 2011 Supreme Court of Canada decision in Ontario (AG) v Fraser, which found the AEPA constitutionally compliant under subsection 2(d) of the Charter, which guarantees freedom of association.[4] Following the Supreme Court of Canada decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia,[5] which found that subsection 2(d) guaranteed a right to a process of collective bargaining, Fraser sought to extend this to include a right to particular features of collective bargaining located under the LRA, though this was ultimately unsuccessful at the Supreme Court of Canada.

Most recently, in June 2020, the Ontario Agriculture, Food and Rural Affairs Appeals Tribunal (the Tribunal) released its decision in UFCW v MedReleaf Phase 2.[6] MedReleaf raised further questions about the right to collective bargaining under the AEPA,[7] as well as advancing arguments about the nature and scope of the right to strike. This followed the Supreme Court of Canada’s 2015 decision in Saskatchewan Federation of Labour v Saskatchewan (SFL), which found that subsection 2(d) includes a right to strike.[8] The right to strike was the focal point in MedReleaf Phase 2, as the legislation at issue, the AEPA, is silent on this topic. While the Tribunal’s decision in MedReleaf Phase 2 recognized a right to strike under the AEPA, it has left open the possibility that this will be interpreted as a bare right without concomitant protections necessary for workers to confidently assert this right without repercussions.

This article explores the right to strike argument as it unfolded in the MedReleaf Phase 2 decision and highlights the enduring tensions that exist in articulating and extending labour rights under subsection 2(d) of the Charter to non-Wagner models of labour relations. The Wagner model has been the historically dominant approach to labour relations under Canadian law. It requires the formation of a defined bargaining unit to facilitate a formalized collective bargaining process with the employer, and is characterized by the twin elements of majority representation and exclusivity of the bargaining agent.[9] Further hallmarks of the Wagner model include: a duty to bargain in good faith and make all reasonable efforts to reach a collective agreement; the right to strike in the event of a bargaining impasse; and, detailed procedures for arbitration during both negotiation and administration of a collective agreement.[10]

The persistent decline in unionization in Canada has been attributed to both decreasing accessibility to unionization under the traditional Wagner model and changing nature of the labour landscape.[11] The processes required to organize and certify a union generates multiple difficulties for the increasing population of non-standard workers in Canada, given the fragmentation, casualization, and high turnover rate of labour in many industries, such as food services and retail.[12] As a result, non-standard workers are known to face myriad challenges in unionizing, due to both formal exclusion under labour law and practical barriers accessing the relevant mechanisms to unionize under labour law.[13] This has highlighted the need for new labour relations models and statutory approaches to collective workplace representation (CWR) in Canada.

As the only known non-Wagner labour relations statute to have survived constitutional challenge in Canada to date,[14] the AEPA presents fertile ground for examining how subsection 2(d) may operate to extend labour rights under a broader array of regulatory approaches. Today, subsection 2(d) can be considered to protect at least three key activities in the realm of labour relations: (1) protection against employer reprisals for engaging in collective action in the workplace;[15] (2) access to a process of collective bargaining with an employer;[16] and, (3) access to strike activity or dispute resolution to resolve a bargaining impasse.[17] We argue that, despite the many limitations and failures of the AEPA as a regulatory framework for extending labour rights and CWR, the protections afforded under subsection 2(d) may nonetheless provide a meaningful foundation for exercising associational rights under this statute. This sets the stage for a richer consideration of regulatory approaches to CWR and labour rights in Canada beyond the Wagner model. However, as we will discuss in this article, attachment to and benchmarking against the Wagner model has, in some ways, stunted progress and limited a robust understanding and application of the full panoply of rights and protections enunciated under subsection 2(d).

While the MedReleaf case advanced arguments about both the right to collective bargaining, and the right to strike, our article focuses exclusively on the latter. The right to strike as a protected activity under subsection 2(d) has been recognized much more recently than a right to collective bargaining and was not considered in the original challenge to the AEPA in Fraser.[18] Further, the silence of the AEPA in respect of strike activity invites a more nuanced examination of the scope, content and (potential) power of subsection 2(d) to fill statutory voids in respect of CWR frameworks. Finally, given both the historical and contemporary understandings of the nature, purpose, and function of strike activity, examining its practical availability outside of Wagner-style statutes holds particular value in considering future directions for CWR and labour law in Canada.

We begin, in section I, by reviewing the history and content of the AEPA and its previous constitutional challenge in Fraser to provide important background and context to the MedReleaf case. We describe, in section II, the arguments and analysis concerning the right to strike in the MedReleaf Phase 2 decision, highlighting how these narrowed the opportunity for a richer examination and interpretation of subsection 2(d) and the AEPA by focusing substantially on a comparison with strike regulation and protections as understood under the LRA. This tendency to benchmark labour rights against the Wagner model has created enduring challenges for subsection 2(d) and the future of Canadian labour law.[19] We unpack the Tribunal’s analysis in greater detail in section III and establish that the Tribunal, perhaps unsurprisingly, failed to add meaning and strength to how a right to strike might operate under the AEPA. In section IV, we outline and establish that the language of the AEPA itself, coupled with subsection 2(d) jurisprudence and fundamental rule of law principles, create the necessary foundation to make a right to strike a meaningful and protected activity under the AEPA. We go onto consider the potential future of the right to strike under the AEPA in section V, highlighting possible ramifications regarding a right to strike if agricultural workers are deemed as “essential services”, or if the right to strike is otherwise restricted through future legislative action. Finally, we conclude by revisiting the enduring challenges of reliance on Wagner-model labour relations statutes as a benchmark and anchor for interpreting and applying freedom of association under the AEPA, and more generally in non-unionized environments.

I. The AEPA: A Brief History

The AEPA was created by the Ontario legislature in direct response to the Supreme Court of Canada’s decision in Dunmore.[20] That decision had found that the exclusion of agricultural workers from the LRA in Ontario, without providing an alternative legislative regime for labour organizing, violated subsection 2(d) of the Charter, which protects freedom of association.[21] The AEPA was, in response to the Supreme Court of Canada’s decision in Dunmore, explicitly created to exclude farm workers from access to unionization, and in doing so, entrenched their precarity in the Canadian labour landscape. The inability to collectively bargain is inextricable from a historic trend of powerlessness experienced by farm workers attempting to assert and enhance workplace rights, gain control over workplace conditions, and who have faced an overall inaccessibility to justice.[22] The ongoing struggle of farm workers — who are often members of racialized communities, socioeconomically disadvantaged, and quite often migrant and temporary workers — underpinned the factual records in Dunmore and Fraser, and the inherently exclusionary purpose of the AEPA perpetuates longstanding vulnerabilities and “exceptionalism under the law” attached to farm workers in Canada.[23]

Despite being the product of a legislative agenda to deny farm workers a robust set of rights, the AEPA provides an opportunity to examine whether and how subsection 2(d) may work to extend meaningful labour rights to non-Wagnerian labour relations schemes. As a labour statute, the AEPA is firmly outside the Wagner model. First, it allows for the possibility of multiple employee associations, not a single and exclusive bargaining agent.[24] The legislation also does not prescribe any particular method or requirements to form and recognize an employee association in the workplace. An employees’ association, under the AEPA, is simply defined as: “an association of employees formed for the purpose of acting in concert.”[25] All employees operating under the AEPA have rights to: “form or join an employees’ association”; “participate in the lawful activities of an employees’ association”; “assemble”; “make representations to their employers through an employees’ association”; and, “protection against interference, coercion and discrimination in the exercise of their rights.”[26] The AEPA further sets out rules and regulations governing the right to make representations to an employer,[27] protections for workers operating under the AEPA,[28] and a complaints process for alleged violations under the AEPA.[29] The AEPA designates the Tribunal to hear complaints.[30]

We do not suggest that the AEPA provides a truly meaningful or robust alternative to the Wagner model of labour relations, nor do we ignore the context which gave rise to its enactment. The AEPA was unmistakably intended to provide farm workers with no more than the minimum requirements of a constitutionally compliant scheme, pursuant to the decision in Dunmore. The Minister of Agriculture and Food, at the time the AEPA was introduced, expressly claimed that the legislation was not designed to extend collective bargaining rights to farm workers.[31] In addition, the dispute resolution body — the Tribunal — is not equipped with industrial relations experts that are likely needed to navigate the particularly complex and sensitive relationships between farm workers and their employers. The Ontario Legislature’s decision to deprive farm workers with access to specialists where labour relations breakdown is further demonstrative of their intentions in enacting the AEPA. Nonetheless, as we will explore in subsequent sections, the development of subsection 2(d) jurisprudence and protections do some work to overcome these intended limitations, creating the foundation for an extension of more meaningful labour rights, despite the intended limitations of the statutory language.

The AEPA was first challenged in Fraser.[32] That case had followed on the heels of the Supreme Court of Canada’s decision in Health Services, which found that subsection 2(d) guaranteed a right to a process of collective bargaining.[33] As such, the arguments in Fraser revolved substantially around whether subsection 2(d) guaranteed a right to the specific mode of collective bargaining enshrined in the LRA. Under the AEPA, agricultural employees have a right to “make representations” to an employer.[34] As such, the respondents in Fraser argued that the AEPA violated subsection 2(d) by not requiring a process to “bargain collectively.”[35] The respondents set out their argument along three axes: “(1) statutory protection for majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent; (2) an LRA-type statutory mechanism to resolve bargaining impasses and interpret collective agreements; and (3) a statutory duty to bargain in good faith.”[36]

The majority of the Supreme Court of Canada in Fraser affirmed that Health Services had enshrined a right to a process of collective bargaining, but not access to a particular model.[37] As such, the respondents’ first argument, that subsection 2(d) essentially required access to a Wagner model of labour relations, failed. The majority also read in a statutory duty to bargain in good faith under the AEPA in order to find it constitutionally compliant.[38] This, in turn, was adopted and elaborated upon by the Tribunal in the United Food and Commercial Workers International Union v MedReleaf Corp (MedReleaf Phase 1) decision.[39] Finally, as regarded the respondents’ argument that subsection 2(d) required access to an “LRA-type statutory mechanism to resolve bargaining impasses and interpret collective agreements,” the majority in Fraser found that the respondents had not yet sufficiently “tested” the complaints process set up under the AEPA, and that their argument on that basis was thus premature.[40]

Presumably, the reference to an “LRA-type statutory mechanism”[41] by the respondents in Fraser included statutory regulation for strike activity, interest arbitration or grievance processes, and complaints processes to an administrative tribunal or court. Each of these are components of the LRA and general features of unionized workplaces in Canada. The AEPA explicitly provides only for a complaints process to the Tribunal,[42] and does not expressly permit or regulate strike activity or other dispute resolution mechanisms, such as arbitration. At the time Fraser was decided, a right to strike had not been recognized under subsection 2(d). When a right to strike was recognized in the 2015 SFL decision,[43] this created a foundation for a new constitutional challenge to the AEPA.

The decision in Fraser has been subject to ongoing debate and critique concerning whether and to what extent subsection 2(d) meaningfully protects labour organizing outside of unionization, and whether it ought to constitutionalize the Wagner model of labour relations.[44] On one side of the debate, critics have pointed out that increasing constitutional space for alternative forms of collective representation will weaken the foothold of organized labour in Canada. These critics further explain that new and alternative models will also fail to provide workers organizing under them with the full scope of rights and protections that the Wagner model necessarily provides.[45] Conversely, some commentators have noted in response to Fraser that expanded constitutional space for alternative CWR could provide workers — especially those workers that have traditionally been formally excluded from, or otherwise unable to access, the benefits of the Wagner model in Canada — with a practical means of organizing and advancing their rights in the workplace.[46]

Despite ongoing debates over the normative implications of Fraser and subsection 2(d), it did clearly extend the reach of subsection 2(d) beyond the Wagner model, and specifically, to the AEPA. Moreover, the holdings in Fraser, especially in relation to the implied duty to bargain in good faith, were endorsed and built upon in the Tribunal’s decision in MedReleaf Phase 1,[47] establishing some promise, if modest, for subsection 2(d) to craft a more robust framework for labour organizing under the AEPA.[48] Thus, despite its history and intended purpose of excluding farm workers from access to labour rights, the AEPA may, in fact, extend constitutionally protected labour rights to farm workers in Ontario when it is read in light of the contemporary jurisprudence on freedom of association.[49]

II. UFCW v MedReleaf: A New Constitutional Challenge to the AEPA

The MedReleaf case arises from union organizing activities by MedReleaf Corp. employees in 2014. The dismissal of senior level employees led a group of employees at MedReleaf Corp. to seek representation by the United Food and Commercial Workers International Union (UFCW) to provide greater job security.[50] The UFCW attempted a failed certification drive at the Ontario Labour Relations Board (OLRB).[51] MedReleaf Corp. first challenged the jurisdiction of the OLRB, claiming that the employees were farm workers subject to the AEPA.[52] The OLRB, notwithstanding the jurisdictional challenge, allowed the UFCW to conduct a representational vote.[53] The UFCW failed to secure a majority of votes but alleged unfair labour practices in a submission to the OLRB.[54] The OLRB, in turn, decided that it did not have jurisdiction and the employees of MedReleaf Corp. were, in fact, subject to the AEPA.[55] During this period, several employees were dismissed from MedReleaf Corp.[56] The UFCW, representing three dismissed employees and one who departed following the organizing vote, brought a complaint to the Tribunal under section 11 of the AEPA, alleging unfair labour practices related to the employee dismissals, and launched a constitutional challenge to the AEPA on the basis of the right to strike.[57] The issues were bifurcated, and the first issue was settled in an initial decision released on August 29, 2018.[58] The decision addressing the constitutional challenge concerning the right to strike was subsequently rendered on June 17, 2020.

The constitutional challenge to the AEPA centred on two related issues: first, whether the absence of express regulation of strike activity violated subsection 2(d); and second, whether the absence of statutory job protections for engaging in strike activity violated subsection 2(d). The Tribunal concluded the AEPA was constitutional since it “does not prohibit or preclude employees from exercising their common law freedom to collectively withdraw services from their employer in pursuit of negotiating employment terms and conditions.”[59] The Tribunal’s analysis rested on three primary findings: first, that subsequent constitutional jurisprudence affirmed the Supreme Court of Canada’s ruling in Fraser that subsection 2(d) does not guarantee access to a particular model of collective bargaining or labour relations; second, that the ruling in SFL holds that subsection 2(d) will be infringed where a statute imposes an express prohibition of strike activity without an alternative dispute resolution mechanism; and, third, that a challenge to the AEPA on this basis was premature, as no attempts to strike had been made by workers at MedReleaf Corp.

Turning first to the interpretation of subsequent jurisprudence, the Tribunal extended the interpretation of subsection 2(d) as open-ended and non-committal to a particular model of labour relations to find that legislation was not required to expressly regulate strike activity, nor to explicitly provide for particular remedies or protections in that regard. The Tribunal explained that the Supreme Court of Canada’s 2015 decision in Mounted Police Association of Ontario v Canada (AG) (MPAO) reaffirmed the holding in Fraser that subsection 2(d) “confers the right to a process of collective bargaining, understood as meaningful association in pursuit of workplace goals, including the right of employees joining together and making collective representations to the employer, who must consider the representations in good faith.”[60] This only provides the right to a process, not to a particular model of labour relations. This line of analysis led the Tribunal to further conclude that a legislative scheme that does not expressly contain a statutory right to strike, or otherwise regulate strike activity, is not unconstitutional,[61] those being specific components of LRA-style statutes, and not necessarily mandated under subsection 2(d).

Turning second to the issue of the right to strike in the context of the AEPA, the Tribunal held that SFL confirms that legislation which prohibits strike activity without an alternative dispute resolution mechanism infringes subsection 2(d) of the Charter.[62] On this interpretation, legislation that is silent about strike activity could be read as presumptively permitting it, which the Tribunal determined in relation to the AEPA: “while the AEPA is silent about the right to strike, such silence does not undermine its constitutional validity.”[63] Linking this back to the first point of analysis regarding the intentionally plural approach to collective bargaining under subsection 2(d), the Tribunal reminded that the AEPA does not adopt a parallel legal framework to the LRA, nor is it required to do so. Since employees are free to withdraw their services under the AEPA, subsection 2(d) is not infringed.[64]

The UFCW argued that a right to strike, absent statutory job protection, as is available under the LRA, amounts to a “right to collectively quit.”[65] The Tribunal found, however, that the jurisprudence interpreting subsection 2(d) did not support a constitutional requirement for statutory job protection in order to give effect to the right to strike.[66] Rather, the Tribunal determined that the threat of strike activity was, itself, sufficient. The Tribunal found that MedReleaf employees exercised significant economic leverage over their employer “arising from [the nature of working with the marijuana crop] and the limited availability of a pool of readily trained replacement employees that could be hired in a timely fashion.”[67]

Finally, the Tribunal concluded, as the Supreme Court of Canada had in Fraser, that the constitutional challenge was premature as the UFCW had not fully tested the protections offered by the AEPA.[68] The Tribunal therefore declined to discuss whether a failure to take proactive steps to reach an agreement or job action against employees for exercising their right to strike would engage the remedies available to the Tribunal under subsection 11(6) of the AEPA, such as ordering reinstatement or compensation.[69] In sum, the Tribunal expressly defined the scope of the right to strike under the AEPA as employees exercising the common law freedom to strike by collectively withdrawing their services.

Much of the MedReleaf Phase 2 decision regarding the constitutional challenge appears to have been shaped by a comparison to the LRA, both in arguing for express statutory regulation of the right to strike, and for specific, statutorily-guaranteed job protection in the context of a strike. As the next section unpacks, this “tunnel vision” and tendency to benchmark against the LRA may operate in a way that is counterproductive to a richer and more nuanced understanding of subsection 2(d) and its application to non-Wagnerian statutory models for labour relations, including the AEPA.

III. Unpacking the “Right to Strike” in MedReleaf

Just as the constitutional challenge to the AEPA in Fraser led to clarification about the scope and content of a right to collective bargaining under subsection 2(d), the current MedReleaf Phase 2 case held potential to add important insight into how the right to strike operates outside of the LRA and in relation to other protections and rights extended under subsection 2(d). However, the Tribunal’s decision, and arguments of the UFCW as they were framed in that decision, appear to have relied substantially on a comparison with the LRA, which thwarted an important opportunity to bring much-needed clarity to this issue.[70] This tendency, in both litigation and scholarship, to “benchmark” against the Wagner model, may operate to limit the scope of creative thinking and hinder substantive progress in conceptualizing subsection 2(d) in a robust and meaningful way beyond the Wagner model, and especially under the AEPA.[71] As a consequence, in MedReleaf Phase 2, this approach resulted in extension of only a bare right to strike, reflective of now abandoned formalist approaches to interpreting subsection 2(d).[72]

In this section, we critically analyze core aspects of the MedReleaf Phase 2 decision that highlight how the Tribunal’s analysis extends only a bare right to strike, on its face, contrary to recent direction provided by the Supreme Court of Canada and the arc of subsection 2(d) jurisprudence towards a meaningful and more substantive interpretation of freedom of association. This sets the stage for the next section (IV), where we demonstrate how existing constitutional jurisprudence, coupled with the language of the AEPA itself, is capable of extending necessary protections to provide workers with meaningful access to their rights under subsection 2(d).

At the heart of the Tribunal’s analysis in this decision was, first, whether the AEPA had to give positive effect to, or regulation of, strike activity in order to pass constitutional muster, and second, whether subsidiary protections were required under legislation in order to give effect to the right to strike.[73] The Tribunal determined that, absent express prohibition, the legislation would be read as permitting strike activity.[74] Since there was no express prohibition against striking under the AEPA, MedReleaf employees were free to strike: to withdraw their services in order to exert economic leverage on their employer in negotiating terms of employment.[75] The Tribunal’s finding that workers are free to exercise their right to strike even where legislation is silent on the matter is consistent with the general ruling of the Supreme Court of Canada in SFL.[76] As a result, workers operating under the AEPA are protected from “vertical” interference with their right to strike, vis-à-vis legislation or government activity that expressly prohibits a withdrawal of labour.[77] This is, in fact, a promising outcome in clarifying that the right to strike, as guaranteed under subsection 2(d), does extend beyond unionized environments, and presumptively operates in a plurality of labour relations contexts.

Despite the recognition of a right to strike, the Tribunal failed to clarify whether and how subsidiary protections operate to make that right a meaningful option for workers to exercise. In doing so, the Tribunal legitimized skepticism about its ability to engage with labour and constitutional issues with sufficient expertise, sensitivity, and attentiveness to context.[78] The UFCW had argued that, absent subsidiary protections, a right to strike was effectively a “right to collectively quit.”[79] The language of the decision indicates that the UFCW was arguing for the same statutory job protection rights that are explicitly extended to workers under the LRA. These provisions guarantee job security and reinstatement for workers who go on strike, as it is understood and regulated under that statute.[80] The Tribunal rejected the arguments concerning subsidiary protections because it determined that it was without the necessary factual foundation to decide such a question.[81] It is a well-established rule that constitutional questions should only be decided incrementally and based on the factual matrix before a court or tribunal.[82] However, at issue in this decision was whether the AEPA was constitutional given the absence of express provisions pertaining to the right to strike. This context, and the particular arguments raised concerning subsidiary protections, invited the Tribunal to clarify the existing constitutional and statutory foundation on which the right to strike may be exercised under the AEPA.

The Tribunal’s analysis regarding subsidiary protections focused substantially on demonstrating that strike activity itself provides workers with sufficient leverage and power against their employer. It therefore implied that statutory job protection is necessary only to supplement bargaining power in the labour relations context. It would be a mischaracterization of subsection 2(d), SFL, and the right to strike to suggest that protections against employer reprisal for engaging in associational activity are surrendered where leverage exists as a product of strike activity, yet one might read the Tribunal’s decision in this light. Essentially, the Tribunal indicated that once striking, or the threat of it, might achieve its intended purpose — to increase employee power and promote industrial peace through (the threat of) economic sanction — it would no longer require the kind of protections that make its exercise a viable option at the outset.[83] However, subsidiary protections do not operate to increase the bargaining power employees can exert under a strike but operate as a pre-condition to make striking a viable option and tool for workers to use to exert power in the context of collective bargaining. In other words, subsidiary protections function along the axis of “diagonal” application of the Charter to enable the effective exercise of the rights guaranteed under subsection 2(d).[84]

Diagonal application of the Charter looks to whether there exists sufficient protections to ensure meaningful exercise of the right in question, such as derivative rights that may impose correlative duties on third parties like employers,[85] or subsidiary protections as we have described them. An infringement of constitutional rights may thus arise from a failure to create sufficient conditions within which to exercise the right.[86] The Supreme Court of Canada has paid particular attention to diagonal application of the Charter in cases regarding subsection 2(d) to ensure associational activities can be exercised meaningfully in the labour relations context. For example, this logic underscores the decision in Fraser in which the Court read-in an implied duty to consider employee representations in good faith.[87] This logic was further used to ground the Court’s determination of a right to strike as an “indispensable” component of the right to collective bargaining.[88] The Court has recognized, through these cases, that for labour statutes to be constitutional, more than an absence of interference with protected associational activities may be required.

The underlying concern that likely grounded the UFCW’s argument regarding statutory job protection was the need to ensure sufficient conditions to enable workers to practically access the right to strike in a meaningful and effective manner under the AEPA. In other words, the argument was likely animated by a concern about diagonal application of the Charter under the AEPA. Without protection against termination, for example, a worker has a strong disincentive to engage in a strike, even if they are ostensibly entitled to do so. Although the Tribunal notes in the MedReleaf Phase 2 decision that the workers at MedReleaf Corp. were “skilled, trained, received good wages, benefits, shares in the corporation and worked in a highly regulated and inspected facility,”[89] this does not necessarily mean that they do not suffer from any economic disadvantage, nor that they would not experience serious disincentives to undertake a strike absent any guarantee of job security. These workers may operate in a limited labour market with short supply; they may have significant debts or financial obligations that would make a gap or disruption in income unmanageable. There are, in short, many reasons why the absence of protection for employment would make even “secure” or “economically advantaged” workers hesitant to engage in strike activity in the absence of subsidiary protections under law. Moreover, although we acknowledge that the Tribunal must decide questions of law with regards to the factual matrix before it, the reality is that many, if not most, farm workers in the province possess significantly less security than the workers at MedReleaf Corp. This means that a bare right to strike, without any guarantee of protections for employment, will be even less viable for a substantial proportion of farm workers in Ontario.

Thus, despite the economic leverage that agricultural workers may be able to exert against their employer through the threat of strike activity, a point the Tribunal emphasized in its decision,[90] such leverage must be balanced against the consequences workers may face or perceive that they may face if they engage in strike activity. The potential leverage or power workers might hold may, in fact, be neutralized due to their individual economic concerns or circumstances, even for workers in higher paying and more secure occupations or sectors within the agricultural industry. A bare right to strike fails to account for this wider context in which rights are exercised, and for the supports that are necessary to allow for the exercise of rights. This illustrates why subsidiary protections, extended through diagonal application of the Charter, are necessary to give effect to the right to strike in all labour contexts. Further, the underlying constitutional jurisprudence of subsection 2(d) not only establishes a need for some form of protection, but also a legal basis for its existence and application to the AEPA.

IV. Building a Meaningful Right to Strike Under the AEPA: A Roadmap

As the previous section demonstrated, the MedReleaf Phase 2 decision failed to clarify the scope and content of existing subsidiary protections that may be available to support a robust and meaningful interpretation of the right to strike in that context. As such, it could be interpreted as extending only a bare right to strike: a right which provides workers only with common law protections against incurring criminal or tortious liability for striking, or from being ordered back to work.[91] The existence of only a bare right to strike prompts concerns about whether and how that right functions to advance the interests of workers, particularly those in vulnerable and precarious employment.[92] As we discussed in the previous section, the right to strike, conceived of as a bare right, is insufficient to meet its purpose in this regard. Rather, as the Supreme Court of Canada has consistently articulated, derivative rights and correlative duties are often necessary to realize the full guarantee of freedom of association in the labour relations context,[93] a point of analysis the Tribunal failed to engage with in MedReleaf Phase 2.

We argue that existing constitutional jurisprudence, coupled with the language of the AEPA itself and foundational rule of law principles, work together to offer the very kind of protection needed to give meaningful effect to the right to strike under the AEPA, specifically protecting workers against employer reprisals in this context. In this section, we take up the challenge of constructing that argument; we establish how protections against employer reprisals, properly understood in their existing constitutional and statutory contexts, could meaningfully protect workers who may engage in strike activity under the AEPA.

The Supreme Court of Canada’s decision in Dunmore is most instructive in providing a constitutional foundation for the claim that the right to strike requires, and indeed already includes, subsidiary protections similar in purpose, if not in substance, to the UFCW’s argument in MedReleaf Phase 2. Dunmore centred on a challenge under subsection 2(d) to the exclusion of agricultural workers from the LRA. In finding that subsection 2(d) required access to some legislative scheme for labour organizing for agricultural workers, the majority of the Court determined that subsection 2(d) protects workers’ rights to organize “without penalty or reprisal,” and that “without the necessary protection, the freedom to organize could amount ‘to no more than the freedom to suffer serious adverse legal and economic consequences.’”[94] Indeed, the same can be said regarding the right to strike. A right to strike, without any protection against penalty or reprisal, would amount to no more than the freedom to suffer serious adverse consequences, making it akin to a “right to quit” as the UFCW had argued in MedReleaf Phase 2. As such, Dunmore can be understood as recognizing the right to engage in associational activity, which now includes strike activity,[95] free from employer reprisal or penalty for doing so.

The AEPA itself also contains clear language concerning protections against employer reprisal or penalty for engaging in associational activity or for exercising rights under it. Section 8 of the AEPA expressly protects workers against employer interference with “the formation, selection or administration of an employees’ association, the representation of employees by an employees’ association or the lawful activities of an employees’ association.”[96] Section 9 protects employees from employer reprisals for engaging in associational activity and for exercising their rights under the AEPA, expressly prohibiting employers from taking various actions, such as threatening dismissal.[97] Section 10 further protects workers from threats and coercion meant to induce employees into joining or refraining from joining an employer or employee organization.[98] Together, and complementary to the decision in Dunmore, sections 8–10 of the AEPA expressly provide a statutory foundation for protections against penalty or reprisal by an employer for employees exercising their rights under the AEPA, which the Tribunal found does include a right to strike. Reprisal or penalty is defined under the AEPA as including threat of, or actual, termination of an employee, as well as discrimination against an employee regarding the terms and conditions of their employment.[99]

In addition to offering substantive protection against employer reprisals, the AEPA provides a clear pathway for complaints and broad remedial authority to the Tribunal for alleged violations under the AEPA. Section 11 allows complainants to bring claims to the Tribunal for alleged contraventions under the AEPA.[100] This comports with general rule of law principles that identify access to courts and to a legal remedy as necessary.[101] Moreover, as is characteristic of administrative tribunals, the AEPA grants broad remedial authority to the Tribunal. Such authority includes: allowing the Tribunal to make orders compelling a person to do, or refrain from doing, something in respect of an AEPA contravention;[102] to make orders to a person or organization to cease doing or rectify the acts complained of;[103] or to order reinstatement in employment, to compensate the complainant, or to provide other employment benefits.[104] As such, while it would be beyond the Tribunal’s proper role and function to read-in a guarantee of reinstatement into the AEPA itself,[105] it is expressly within the Tribunal’s remedial powers to order reinstatement where a worker has been dismissed for engaging in strike activity. Further, where dismissal was established to have been made in reprisal for exercising the right to strike, reinstatement would be the logical and natural remedy to order, absent extenuating circumstances, such as business closure.

However, while we have established in the preceding paragraphs that the APEA, coupled with the subsection 2(d) jurisprudence and rule of law principles, expressly provides protection against employer reprisal, and sufficient remedial authority for the Tribunal to properly redress any reprisal in that regard, substantive access to and confidence in these protections are far from certain. The Tribunal’s failure to engage with or comment on this issue in their decision may also operate to entrench a lack of confidence in and existing negative perceptions held about the Tribunal’s competency and bias. Moreover, the silence of the Tribunal on this issue leaves farm workers in a doubly precarious position. Given the history of the AEPA, the already precarious status of many farm workers in Ontario, the remaining uncertainty about the scope of available protections, and the significant burden of litigation, this creates an unreasonable, but possibly intended, deterrent in exercising rights under the AEPA.

The jurisprudence under subsection 2(d), particularly the holding in Dunmore that subsection 2(d) must protect workers’ ability to engage in associational activity free from employer reprisal, along with the specific prohibitions against employer reprisal activity under sections 8–10 of the AEPA, create a legal foundation for protection against termination and other punitive actions taken in response to strike activity under the AEPA. Further, the remedial powers of the Tribunal expressly include reinstatement as an available remedy under the AEPA, which it would have a compelling reason to use if an employee were indeed terminated for engaging in strike activity. As such, the right to strike under the AEPA should not be seen only as a bare right: a “right to quit,” nor as a reason to terminate workers. While it does not follow that we find the AEPA to be the “best” alternative to the Wagner model, or even adequate to meet the full scope of needs of workers organizing under it, we conclude that the legal framework extends the very kind of protections, in substance if not form, that the UFCW argued for in MedReleaf Phase 2. Moreover, regardless of the particular jurisdictional location or composition of the Tribunal, it is required under law to discharge its duties in accordance with fundamental rule of law and administrative principles, and with sufficient competence, including in interpreting the statute, and hearing and adjudicating disputes. Should a case concerning the above arguments come before the Tribunal in the future, it may add further clarity on the scope of subsidiary protections under the AEPA. Unfortunately, given the Tribunal’s reticence to add depth and nuance to this issue in MedReleaf Phase 2, certainty in this regard will be held in abeyance unless or until new cases are brought forward.

V. Thoughts on the Future of the Right to Strike Under the AEPA

In addition to questions about the right to strike and subsidiary protections left unanswered in MedReleaf Phase 2, the decision highlighted several more issues that linger under the AEPA. In particular, several individuals appeared to offer testimony that raises a question about whether agricultural work is essential in nature, a characterization which has only strengthened in the context of the COVID-19 pandemic.[106] In looking to the future, we offer preliminary analysis and insight about the possibility of future abrogation on the right to strike for agricultural workers. We first review elements of the decision that give rise to this as a potential future issue, focusing especially on the question of whether agricultural work could be deemed as an “essential service.”[107] We then go on to discuss how the legal principles as affirmed most recently in SFL would apply to future legislative amendments restricting or displacing the right to strike under the AEPA.

Turning first to the question of essential services, the MedReleaf Phase 2 decision recounts testimony offered by several individuals that aims to provide context for understanding the agricultural industry in Ontario. This evidence provided context, as the Tribunal described it, to understanding the “havoc” that a strike by agricultural workers could have on farms in Ontario.[108] This evidence came from three farms that employ mostly temporary foreign workers, as well as from Portia MacDonald-Dewhirst, who testified for the Attorney General.[109] The Tribunal noted that the evidence provided by the farms was “more or less aligned about the withdrawal of services by their employees creating economic havoc in those farming operations due to factors such as the health, safety and welfare of livestock and the perishability of the crops and the need for ongoing crop maintenance.”[110] The evidence further established that there is a limited pool of labour in the agricultural sector in Ontario and increasing demand.[111] This evidence all suggests that the agricultural industry would be ill-equipped to cope with a sudden withdrawal of the labour force, which could be used to argue for abrogation of the right to strike.

Despite the Tribunal’s lack of attention to subsidiary protections attending the right to strike, the decision clearly acknowledged that the right to strike broadly provides the freedom to withdraw services under the AEPA. The logical corollary of the decision is that substantial, vertical interference with the withdrawal of services would in most cases amount to infringement with the subsection 2(d) guarantee of freedom of association. In other words, a complete prohibition or severe restriction on strike activity would likely constitute a violation of freedom of association. Following SFL, labour lawyers and scholars have posited that abrogation of the right to strike will generally result in a breach of subsection 2(d) and require justification under section 1.[112] The more sweeping a prohibition on striking, the more likely the law will be found unconstitutional. By extension, the question is whether that infringement could be demonstrably justified in a free and democratic society under section 1 of the Charter.

Whether the regulation or abrogation of agricultural workers’ right to strike under the AEPA would be justifiable under section 1 is interwoven with whether they may be classified as essential workers, this being, historically, the basis upon which restrictions on strike activity have been imposed in Canadian labour law. The AEPA applies to all agricultural employees. “Agriculture” is defined under the AEPA broadly, and includes a wide array of industry and crops, such as dairy, beekeeping, aquaculture, livestock, agricultural commodities, maple products, mushrooms, tobacco, and ornamental horticulture.[113] As such, abrogation of the right to strike would apply broadly to a variety of workers and settings under the AEPA, ranging from temporary foreign workers and low-wage farm labour to more “skilled” and higher wage labour such as that in MedReleaf Phase 2 (as the Tribunal characterized it).

In SFL, the Supreme Court of Canada appeared to endorse the International Labour Organization (ILO) Committee on Freedom of Association’s definition of what constitutes a class of essential service workers: those services needed to prevent “clear and imminent threat to the life, personal safety or health of the whole or part of the population.”[114] It is questionable whether, absent the kind of emergency situation posed by the COVID-19 pandemic, for example, agricultural work could properly be interpreted in line with the ILO definition. While wholescale shutdown of agriculture across Canada may pose a “clear and imminent threat” to health, given the impact on Canada’s food supply chain, this is not generally how strike activity works. A withdrawal of labour at one farm would not ostensibly affect the much larger food supply chain in a meaningful way. Moreover, the AEPA only governs agricultural workers in Ontario. Strike activity would, however, and as the Tribunal emphasized, impact the short-term economic gains and production of an individual farm. The pressure that farm workers exert over their employers is economic, such as through risking crop ruin, and is precisely the type of leverage which striking (or the threat of) is intended to provide for workers,[115] as the Tribunal also acknowledged in MedReleaf Phase 2. Notably absent from the ILO definition of “essential services” is criteria relating to economic impact. In light of the very purpose of strike activity, this makes sense. To allow for the abrogation of strike activity on the basis of economic consequences would provide justification for the abrogation of strike activity in all contexts.

Regardless of the characterization of agricultural work as essential or not, the legislature may otherwise impose restrictions on strike activity under the AEPA in the future. Restrictions may range from a total prohibition on strike activity to regulation of strike activity in relation to time, duration, place, manner, and other criteria. A total prohibition on strike activity will constitute “substantial interference” with the right to collective bargaining and thus violate subsection 2(d);[116] other restrictions may, or may not, constitute a violation depending on their particular character and impact on workers.

Where restrictions amount to substantial interference with the guarantee of freedom of association, the restrictions will be subject to a demanding section 1 analysis, particularly at the minimal impairment stage.[117] The onus will be on the government to establish a compelling objective or purpose for the restrictions, and that the restrictions imposed minimally impair the exercise of the right to strike. Following SFL, included in this stage will be a consideration about whether an effective, alternative dispute resolution mechanism is provided where the right to strike is abrogated. Again, as noted above, preventing adverse economic impact to an individual farm, or even a sector of the Ontario agricultural industry, would not likely be understood as a compelling objective, given that economic impact is precisely the point of striking in the labour relations context. Moreover, in light of the particular purpose of labour law as protecting and advancing workers’ rights, a purpose that is shared by the AEPA,[118] restriction or abrogation on the right to strike ought not to be considered as a balancing exercise between employer and employee interests. This means that the government has a significant burden to meet in demonstrating that any restrictions on the right to strike that constitute a substantial interference under subsection 2(d) are justifiable under section 1.

It remains undetermined whether agricultural workers will be considered essential service workers, however, SFL does tether the right to strike to the process of collective bargaining. Therefore, a legislative decision to strip away the economic leverage held by often precariously employed farm workers will likely constitute substantial interference with collective bargaining and require justification under section 1 of the Charter. This is precisely why leverage is a question better left to a justificatory analysis under section 1, not as a consideration in defining the scope of constitutional rights. This is in keeping with our previous conclusions that leverage should not (and does not) define the extent of the right to strike, nor the protections necessary to exercise it.

Conclusion: Thoughts on the Future of Labour Organizing under the AEPA

Beyond the core issue of strike activity, the MedReleaf case brings renewed attention to the enduring question of what a non-Wagner model of labour relations looks like, how it works, and what it offers for workers. The limitations associated with continued benchmarking against the Wagner model, as we noted earlier, have prevented a fuller and richer conversation about the AEPA and experimentation under it. However, while the Tribunal appeared to urge movement in this very direction in MedReleaf Phase 2, the Tribunal failed to provide the kind of certainty and security required to create a context in which such a goal can be meaningfully pursued by workers. We conclude this article by returning to this enduring tension and offer brief comments on the future of labour organizing under the AEPA.

In its decision, the Tribunal brought explicit attention to the ways in which the full potential of the AEPA was being hampered by what it essentially described as the UFCW’s attempts to superimpose the LRA onto the AEPA: “[i]t is [the] singular focus of the UFCW on the Wagner Act model of collective bargaining that is the UFCW’s downfall, not the AEPA’s.”[119] The Tribunal noted that the UFCW had not attempted any representational activity under the AEPA, beyond activities that follow the Wagner model, and found that the UFCW had not advised any workers of their rights under the AEPA.[120] Thus, the Tribunal determined “the UFCW [had] failed to look outside the traditional Wagner Act collective bargaining box and embrace alternative models to represent agricultural workers who desire such assistance.”[121] Indeed, to argue that the AEPA is constitutionally insufficient specifically for falling short of the protections proffered under the LRA is all but doomed to fail, given the Supreme Court of Canada’s holdings in Fraser and MPAO that subsection 2(d) does not guarantee access to a particular model of collective bargaining.

Nonetheless, workers operating under the AEPA may begin to consider how to collectively organize and advance their workplace interests in new ways, drawing inspiration perhaps from other models of collective workplace representation such as workers’ councils, as adopted in Europe,[122] and employee representation centres, as they exist in the US.[123] Workers may further draw inspiration from wide-scale one-day strikes engaged in by Amazon and Whole Foods workers, amongst others, in the United States.[124] These kinds of strikes aim to communicate as much with the consumer and public as with the direct employer, by illustrating the depth and breadth of reliance on these kinds of workers and work through the wholescale withdrawal of their labour. This kind of “public facing” campaign may be an effective route for agricultural workers,[125] whose voices have largely been left out of public and political conversations in Canada. Each of these mediums and methods for organizing have a solid constitutional and legal foundation for the protection of workers under subsection 2(d) and the AEPA.

In this article, we have established that the AEPA, read in light of constitutional jurisprudence and from a purposive interpretation of its own provisions, does indeed provide similar protections, in purpose but not form, as those contained under the LRA. It is this focus on purpose, rather than form, which may be a particularly useful frame in shifting away from direct comparisons to, and benchmarking against, the Wagner model in the future. It is, relatedly, a lack of evident attention to underlying purpose that appeared to shift the parties’ arguments and Tribunal’s analysis away from a meaningful engagement with the issues before it, and thus failed to bring real clarity to the full scope and content of the AEPA and of the right to strike under it.

As discussed in sections II and III, the Tribunal was correct in finding that workers are free to exercise their right to strike even where legislation is silent on the matter. Constitutional benediction was given to that right in SFL.[126] Therefore, workers are protected from “vertical” interference with that right, vis-à-vis legislation or government activity that expressly prohibits a withdrawal of labour.[127] However, the Tribunal failed to consider the “diagonal” application of the Charter and the availability of subsidiary protections attending the right to strike in that regard.[128] This leaves workers operating under the AEPA with substantial uncertainty about how that right will be interpreted in future cases. This, in turn, provides strong disincentives to test the waters and engage in a strike without certainty or clarity regarding the consequences, both practically and legally.

The reasons, if not outcome, in MedReleaf Phase 2 are disappointing precisely because it was within the purview of the Tribunal to make clear the scope and extent of available protections that exist under the AEPA, in compliance with subsection 2(d) jurisprudence. Read purposively, the available protections and remedial authority extended under the AEPA provide the very kind of protection that likely animated the UFCW’s arguments for statutory job protection. By failing to take up this line of inquiry, the Tribunal failed, possibly at a critical juncture in time, to bring together freedom of association jurisprudence and the AEPA in order to clearly delineate how a non-Wagner-style model of labour relations legislation functions vis-à-vis the Charter, and importantly, provides tangible protection to workers who engage in strike activity in an environment where that is not explicitly regulated by statute. Moreover, by focusing solely on whether there existed vertical interference with the right to strike, the full scope of the right to strike and its subsidiary protections, as already grounded in subsection 2(d) jurisprudence, was neglected. As such, the decision provides only incremental progress for workers operating under the AEPA and fails to ameliorate the significant concerns and disincentives that workers will have in assessing whether or not to engage in strike activity. This will likely have ripple effects into the future, limiting the progress towards a fuller realization of labour organizing under the AEPA in a truly “non-Wagner” fashion.