Freedom of Association

Section 2 of the Charter: “Everyone has the following fundamental freedoms: (d) freedom of association”

Freedom of association protects organization for public purposes. This does not include private association, such as within a family, or association to engage in violent or unlawful activity.  It does protect political and economic association, subject to reasonable limits. Freedom of association is also used to protect labour union rights, but the legislature can restrict the timing and form of strikes. In addition, s. 2(d) protects against forced association. Nevertheless, this is not a right of isolation and there are some examples of acceptable forced association, such as membership within a democratic community.

Lavigne v. Ontario Public Service Employees Union – Supreme Court of Canada, 1991
Lavigne was a community college teacher. He challenged the requirement to pay dues to the Ontario Public Service Employees Union because he objected to certain causes it supported. The SCC held that compelling the payment of dues to support causes that did not directly relate to collective bargaining was an infringement of freedom of association. This infringement, however, was justified under section 1 because unions needed the support of all their members to participate in society’s political, economic and social debates and to contribute to democracy in the workplace.

Delisle v. Canada (Deputy Attorney General) – Supreme Court of Canada, 1999
Delisle was the president of an informal association that represented the employment interests of RCMP members in Quebec.  He challenged the Public Service Staff Relations Act and the Canada Labour Code which excluded the RCMP from forming a union under those statutes. The SCC found that s. 2(d) protects the right of RCMP members to form their own independent association but does not require the government to include the RCMP in a specific trade union regime. The legislation was therefore held to be constitutional.

Dunmore v. Ontario (Attorney General) – Supreme Court of Canada, 2001
Agricultural workers were excluded from labour relations regimes in Ontario. The appellants brought an application challenging this. The SCC held that there was an infringement of freedom of association because it was next to impossible for agricultural workers to organize on their own and excluding them from the legislation placed a further chilling effect on this. The SCC held that this infringement was not justified under section 1. While the objective to protect family farms was legitimate, the legislation was too broad in excluding all agricultural workers from every aspect of unionization.

Health Services and Support – Facilities Subsector Bargaining Assn. V. British Columbia – Supreme Court of Canada, 2007
BC passed the Health and Social Services Delivery Improvement Act (the “Act”) without meaningful consultation with the affected unions. The Act gave health care employers greater flexibility to deal with their employees, including in ways that were not permissible under existing collective agreements. Subsequently, the unions and their members challenged the constitutionality of the Act. The SCC ruled that freedom of association protects against substantial interference with collective bargaining. It found that parts of the Act violated this and were not justified under section 1.  While the objective of improving the delivery of health care services was valid, the government did not show why it chose this particular option and why it did not consult the unions in the process.