Although there were three cases, they all basically said the same thing (in fact, most of the judges in the latter two cases just said – hey, see that stuff I said in the Alberta Reference.)
This first wave didn’t make it over the levee of judicial reluctance. The Alberta Reference basically said, nope, sorry, no protection for the right to strike or collective bargaining under the Charter’s Freedom of Association.
And why? Well, four judges relied on the analysis of Mr. Justice McIntyre, who went through six different approaches to labour relations, and then came to a very narrow conclusion:
Freedom of association under the Section 2(d) means the freedom to engage collectively in those activities which are constitutionally protected for each individual. It means also the freedom to associate for the purposes of activities which are lawful when performed alone.
Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess.
The freedom of association in Section 2(d) of the Charter does not give constitutional protection to the right of a trade union to strike as an incident to collective bargaining.
Essentially, Justice McIntyre was saying if the right or freedom isn’t something that an individual has on their own, then a group cannot have it either. And since, collective bargaining and a right to strike have no individual counterpart, then ipso facto, no Charter rights for you.
As a result, while Freedom of Association was said to protect your right to join a union, it didn’t necessarily protect anything unions normally do.
In his dissent, (majority judgements make the rules, while dissents are the disagreeing judicial minority), Chief Justice Brian Dickson had little use for this approach:
If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid. [Paragraph 81 of The Alberta Reference]
Ha, ha, ha, ha. That’s some serious judicial shade.
But Justice Dickson has a point. Freedom of Association wouldn’t mean much if all it protected was your ability to join a union, without also protecting a union’s collective activities, which is the only reason why you bother associating into a union in the first place.
Great, you can join a union all you want, but they cannot do anything useful for you.