The Trilogy and Labour Boards: Where Has All the Good Faith Gone?

Abstract

Recent Supreme Court of Canada decisions under section 2(d) of the Charter of Rights and Freedoms have been notable as much for what they have decided as for what they have left unresolved. One of the key unresolved issues is the meaning and role of the constitutional duties to bargain and consult in good faith. The duty to bargain in good faith has long been present in Canadian labour legislation and labour boards have spent decades developing jurisprudence to give meaning to the term. In its decision in B.C. Health Services, the Court appeared to fold the existing, labour relations notion of good faith bargaining into the freedom of association analysis under section 2(d), thereby creating a constitutional obligation for parties to bargain in good faith. While the obligation of good faith under s. 2(d) is carried forward from Health Services to the Supreme Court’s later decision in Fraser, the function and content of that obligation becomes murky. Good faith is no longer, as the reasoning in Health Services seemed to suggest, akin to the obligation to bargain in good faith developed under Canadian labour statutes. Since Fraser, the constitutional obligation to bargain and consult in good faith seems to have become something less robust than this, although according to the Supreme Court, it is still meant to ensure “meaningful discussion” and a process whereby employees may make representations to their employers. This paper highlights some of the ambiguities created by the Supreme Court’s decisions in Health Services and Fraser. It also looks at the jurisprudence since Fraser with a view to discerning what the duty to bargain in good faith has come to mean under section 2(d).

Keywords: Charter, 2(d), freedom of association, Labour Board, Supreme Court of Canada, labour, labor, duty to bargain, good faith, health services, fraser, electricity market operator