Chapter 10: Scope and coverage of the Labour Relations Act, 1995

10.1 Coverage and exclusions

The Labour Relations Act, 1995 (LRA) does not apply to:

• a domestic worker employed in a private home;
• a person employed in hunting or trapping;
• an agricultural employee (covered by the Agricultural Employees Protection Act, 2002 (AEPA));
• a person employed in horticulture (subject to certain conditions and exceptions);
• a provincial judge; or
• a person employed as a labour mediator or labour conciliator.

In addition, the LRA provides that no person shall be deemed to be an employee:

• who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity; or
• who, in the opinion of the Ontario Labour Relations Board (OLRB), exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

Finally, the LRA either does not apply at all to, or its application is modified for, certain groups of employees in the public sector who are covered by specialized legislation outside the scope of our review.^{footnote 377[377]}

• police (covered by the Police Services Act and the Ontario Provincial Police Collective Bargaining Act, 2006);
• professional firefighters (covered by the Fire Protection and Prevention Act, 1997);
• employees of colleges of applied arts and technology (covered by the Colleges Collective Bargaining Act, 2008);
• employees in teacher bargaining units (covered by the School Boards Collective Bargaining Act, 2014); and
• crown employees (covered by the Crown Employees Collective Bargaining Act, 1993).

10.1.1 Freedom of association and collective bargaining

In previous reviews of labour law in the province of Ontario, the scope of freedom of association had not yet been fully articulated by the Supreme Court of Canada. This is the first review of the Labour Relations Act where the Ontario government must take account of the fact that in Canada the right to meaningful collective bargaining (including the right to strike) is an essential component of freedom of association, pursuant to section 2(d) of the Charter. Prior legislative decisions to exclude these categories of employees must now be reconsidered in a significantly altered and different legal framework.

The Supreme Court of Canada has given freedom of association under section 2(d) of the Charter a robust and purposive interpretation that is binding on all governments in Canada. In numerous cases, the Court has unambiguously set out the importance of the constitutional right that is protected. In the Mounted Police Association of Ontario v. Canada Attorney General case, the Court said:

Freedom of association … stands as an independent right with independent content, essential to the development and maintenance of the vibrant civil society upon which our democracy rests.^{footnote 378[378]}

As in other labour cases, the Court, in Mounted Police Association, made it clear that in the employment context, freedom of association guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals and includes a right to collective bargaining:^{footnote 379[379]}

Without the right to pursue workplace goals collectively, workers may be left essentially powerless in dealing with their employer or influencing their employment conditions. This idea is not new. As the United States Supreme Court stated in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at page 33:

Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment…[Emphasis added.]^{footnote 380[380]}

On numerous occasions, the Court has recognized the importance of freedom of association in responding to the imbalance between the employer and its economic power and the relative vulnerability of individual workers:

…section 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of section 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.^{footnote 381[381]}

The Court emphasized that collective bargaining is a fundamental aspect of Canadian society that enhances human dignity, liberty and the autonomy of workers:

Collective bargaining constitutes a fundamental aspect of Canadian society which enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work (Health Services, at para. 82). Put simply, its purpose is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties. This equilibrium is embodied in the degree of choice and independence afforded to the employees in the labour relations process.^{footnote 382[382]}

Furthermore, the Court stressed that, to be meaningful, the process cannot substantially interfere by reducing the negotiating power of employees, as the intention is to provide a counterweight to the historic imbalance of bargaining power between employees and employers:

The right to a meaningful process of collective bargaining is therefore a necessary element of the right to collectively pursue workplace goals in a meaningful way (Health Services; Fraser). Yet a process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals. As this Court stated in Health Services: One of the fundamental achievements of collective bargaining is to palliate the historical inequality between employers and employees… (para. 84). A process that substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power is therefore inconsistent with the guarantee of freedom of association enshrined in s. 2(d).^{footnote 383[383]}

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court of Canada clarified that the right to strike is also protected by the freedom of association. The majority stated:

The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations.^{footnote 384[384]}

And later in the judgment:

Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives (Fudge and Tucker, at p. 334). The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.^{footnote 385[385]}

In the context of labour relations, it is clearly established that these principles apply and operate to guarantee the right of employees to associate meaningfully in pursuit of collective workplace goals.

10.1.2 The right to strike for essential service employees

The Supreme Court has upheld the right of government to abrogate the right to strike in narrow circumstances involving labour disputes of employees engaged in essential services. Essential services should be interpreted in a manner consistent with that mandated by Chief Justice Dickson in the Reference Re Public Service Employee Relations Act (Alberta),^{footnote 386[386]} who made it clear that essential services must be properly interpreted and applied in a manner consistent with section 1 of the Constitution, which states as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Chief Justice Dickson stated that, to conform with section 1, any limit on the freedom to associate should not be impaired by an overbroad definition of essential services but that, where interruption of service would endanger the life, personal safety or health of the whole or part of the population or involved persons essential to the maintenance and administration of the rule of law, it may mean the abrogation of the right to strike is warranted as a reasonable limit on freedom of association.

In the Alberta Reference case, Chief Justice Dickson was also concerned about the profound bargaining imbalance created when the removal of the right to strike is not accompanied by a meaningful mechanism for resolving collective bargaining disputes:

Clearly, if the freedom to strike were denied and no effective and fair means for resolving bargaining disputes were put in its place, employees would be denied any input at all in ensuring fair and decent working conditions, and labour relations law would be skewed entirely to the advantage of the employer. It is for this reason that legislative prohibition of freedom to strike must be accompanied by a mechanism for dispute resolution by a third party. I agree with the Alberta International Fire Fighters Association at p. 22 of its factum that It is generally accepted that employers and employees should be on an equal footing in terms of their positions in strike situations or at compulsory arbitration where the right to strike is withdrawn. The purpose of such a mechanism is to ensure that the loss in bargaining power through legislative prohibition of strikes is balanced by access to a system which is capable of resolving in a fair, effective and expeditious manner disputes which arise between employees and employers.^{footnote 387[387]}

In Saskatchewan Federation of Labour, above, the Supreme Court of Canada confirmed that where the right to strike is abrogated for an essential service an independent, effective dispute resolution process is required. In that case, the Court was required to deal with the question of whether designated essential employees could be prohibited by legislation from striking. In deciding this issue, the Court relied on numerous international obligations including Canada’s international human rights obligations, about which the Court stated:

Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining. These obligations led Dickson C.J. to observe that:

…there is a clear consensus amongst the [International Labour Organization] adjudicative bodies that [Convention (No. 87) concerning freedom of association and protection of the right to organize (68 U.N.T.S. 17 (1948)] goes beyond merely protecting the formation of labour unions and provides protection of their essential activities − that is of collective bargaining and the freedom to strike. [Alberta Reference, at page 359].^{footnote 388[388]}

The Court held that the right to strike is an essential part of meaningful collective bargaining and concluded that because the legislature abrogated the right to strike and provided no alternate dispute resolution mechanism, the prohibition of the right to strike was unconstitutional.The Court, in referring to Saskatchewan’s Public Service Essential Services Act, 2008 (PSESA), stated:

Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter. In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible.^{footnote 389[389]}

The trial judge concluded that the provisions of the PSESA go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike. I agree. The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the trial judge’s conclusion that the PSESA impairs the section 2(d) rights more than is necessary [Emphasis in original].^{footnote 390[390]}

10.1.3 The obligation of government to eliminate barriers to the exercise and realization ofrights of freedom of association

In Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, (B.C. Health Services), Chief Justice McLachlin and Justice LeBel, writing for the majority, explained that freedom of association places positive obligations on governments to extend legislation to particular groups, they stated:

…Dunmore recognized that, in certain circumstances, s. 2(d) may place positive obligations on governments to extend legislation to particular groups. Underinclusive legislation may, in unique contexts, substantially impact the exercise of a constitutional freedom (para. 22). This will occur where the claim of underinclusion is grounded in the fundamental Charter freedom and not merely in access to a statutory regime (para. 24); where a proper evidentiary foundation is provided to create a positive obligation under the Charter (para. 25); and where the state can truly be held accountable for any inability to exercise a fundamental freedom (para. 26).^{footnote 391[391]}

In Ontario (Attorney General) v. Fraser, the majority of the Supreme Court of Canada stated:

After Dunmore, there could be no doubt that the right to associate to achieve workplace goals in a meaningful and substantive sense is protected by the guarantee of freedom of association, and that this right extends to realization of collective, as distinct from individual, goals. Nor could there be any doubt that legislation (or the absence of a legislative framework) that makes achievement of this collective goal substantially impossible, constitutes a limit on the exercise of freedom of association. Finally, there could be no doubt that the guarantee must be interpreted generously and purposively, in accordance with Canadian values and Canada’s international commitments."^{footnote 392[392]}

In B.C. Health Services, the Court stated:

Before going further, it may be useful to clarify who the s. 2(d) protection of collective bargaining affects, and how. The Charter applies only to state action. One form of state action is the passage of legislation. In this case, the legislature of British Columbia has passed legislation applying to relations between health care sector employers and the unions accredited to those employers. That legislation must conform to s. 2(d) of the Charter, and is void under s. 52 of the Constitution Act, 1982 if it does not (in the absence of justification under s. 1 of the Charter).^{footnote 393[393]}

The Supreme Court has, in B.C. Health Services and Fraser, made it clear that governments have an obligation to eliminate legislative barriers to collective bargaining in light of the constitutional right of freedom of association.

10.1.4 The current LRA exclusions

Professor Michael Lynk stated in his Review of the Employee Occupational Exclusions under the Ontario Labour Relations Act, 1995:

…if collective bargaining, one of our most important public goods, now occupies a protected place within the Charter, then access to collective bargaining should be determined not only by reasons of economic and social policy, or only by the consequences of market and political strength, but also by considerations that are consistent with the fundamental rights and core values which animate our Constitution.

Second, a prevailing theme in modern industrial relations thought is that all employees – regardless of the work they perform and their position or status in the workplace – are intrinsically the vulnerable party in the employment relationship because of the inherent inequality in bargaining power between those who command and those who obey in the workplace. In adopting this perspective, the Supreme Court of Canada has added that: …the imbalance between the employer’s economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship. According to this view, the concept of employment vulnerability, and the corresponding antidote of statutory protection and access to collective bargaining, would be a defining characteristic for anyone who is in an employment or employment-like relationship, wherever he or she may be located across the spectrum of the labour force.

Hand in hand with this understanding of the scope of employee vulnerability in the law is the concept of universality. This concept postulates that collective bargaining as a protective institution should be available to every occupational category of employee, a sort of labour law without borders. Indeed, universality has animated the work of the International Labour Organization and lies at the centre of its fundamental statement on freedom of association in the workplace with respect to the extension of collective bargaining coverage to all employees: without distinction whatsoever.^{footnote 394[394]}

Our recommendations with respect to the scope and coverage of the LRA are informed by the scope of the constitutional right of all employees in Ontario to freedom of association, by a constitutional mandate to government to eliminate barriers to the exercise by employees of their constitutional rights, and by our views of appropriate public policy.

We will deal with the current exclusions from the LRA in the order in which they appear in the LRA.

10.2 Domestics employed in a private home

Domestic workers employed in a private home are those employees who are directly employed by households to provide personal care at the home or residence of a family with children, an older person with personal care needs, or a person with an illness or disability without supervision and who live at the household.^{footnote 395[395]}

The LRA does not apply to a domestic worker employed in a private home. The situation of domestic workers is unique. The historical exclusion of this group was apparently based on the belief that domestic workers formed an intimate social bond with the private households they worked for, and that the possibility of unionization would be an inappropriate barrier to this necessary bond.^{footnote 396[396]}

It is a practical reality that the elimination of this domestic workers exclusion will not achieve much for domestic workers since many are the only persons employed in a private home by a householder. The promise of the freedom to associate with other employees and engage in collective bargaining will be, in most cases, illusory. However, there is no valid policy reason to deny this group of workers their constitutional rights to freedom of association.

As Professor Lynk noted in his Review:

…without re-imaging how collective bargaining or an effective form of collective voice could meaningfully work for the domestic worker employment relationship, the removal of their exclusion from the OLRA, even if accompanied by the relaxing of the two-employee bargaining unit minimum, would not advance the possibilities of genuine collective bargaining for this occupational sector.^{footnote 397[397]}

This classification of employees has distinct characteristics as outlined by Lynk in his Review. These are summarized as:

First, they are largely a female and racialized migrant workforce that currently are in Canada, or initially came to Canada, on temporary work permits via the federal government’s Live-in Caregiver Program (in place since 1992) through agreements with the Philippines and countries in the Caribbean.

…

Second, legal and social science scholars who have studied the employment and social status of domestic workers in Ontario and Canada have remarked upon the particular vulnerability and marginalization of this workforce. This arises from their multiple employment and social insecurities: their temporary work status, their living arrangements under the same roof as their employer, language restrictions, their social and work isolation, their political invisibility, the fact that they are female, migrants and racialized, and the character of their relatively low-skilled and low-paid work. A primary theme in the social science writings is that these workers are heavily dependent upon the goodwill of their employers to protect and maintain the three dominant features of their lives in Canada: their employment, their domestic living arrangements and their immigration status. As migrant workers in Canada, they work and live in a country where they are unfamiliar with the prevailing cultural assumptions and patterns, where they have, at best, a rudimentary understanding of their rights under the employment regulatory system, and where many of them will be working and speaking in a language that is not their native tongue. Above all, they work and live in relative isolation, with little contact during working and home hours with others who share their social and ethnic background and their occupation. They have had only minimal input into negotiating their terms and conditions of their employment, they are often reluctant to challenge an employer’s decision that contravenes their employment contract, and they have little effective recourse to the ordinary regulatory complaint routes should their complaint or concern be rejected by their employer. Among the more commonly reported features of workplace mistreatment includes a trend towards longer works hours than stipulated in their contracts or under the employment standards legislation, the persistent lack of boundaries between work hours and personal hours, and the pervasive feeling that they are under surveillance and lack personal privacy while living in their employer’s household.^{footnote 398[398]}

Given the unique vulnerability of domestic workers and the practical lack of access to collective bargaining, it is suggested that government should consider revising the specific regulation of the rights and protections of these employees under the Employment Standards Act, 2000 (ESA) to be shaped to the particular nature of work and the particular vulnerabilities of domestic work.^{footnote 399[399]} In our recommendations for sectoral regulation under the ESA (see Chapter 6), we recommend a specific sectoral committee composed of employers and representatives of employees to address the specific issues of domestics.

Recommendation

130. The domestic workers exclusion should be removed from the Labour Relations Act, 1995.

10.3 Persons employed in hunting or trapping

The LRA does not apply to a person employed in hunting or trapping. No other Canadian jurisdiction excludes this group from coverage of the applicable provincial labour legislation. It is an anachronism in 2017.

Recommendation

131. The exclusion of persons employed in hunting or trapping should be removed from the Labour Relations Act, 1995.

10.4 Agricultural and horticultural employees

The LRA does not apply to an agricultural employee (covered by the AEPA) or to a person employed in horticulture (subject to certain conditions and exceptions). We have decided to deal with these two exclusions together, starting with agricultural workers.

10.4.1 Agricultural employees

Agriculture is defined in the LRA as:

agriculture includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to this Act as it read on June 22, 1994

Until 1994, agricultural workers were excluded from Ontario’s labour relations regime.

In 1992, the Ontario Government received recommendations from the consultative Task Force on Agricultural Labour Relations, composed of representatives from the agricultural community, organized labour, farm workers and government.^{footnote 400[400]} The Task Force’s recommendations opposed absolute exclusion from the LRA to achieve the government’s objective of protecting agricultural production and viability.^{footnote 401[401]}

The Task Force considered whether — and how — agricultural workers should be entitled to bargain collectively, given the unique characteristics of the agricultural sector. It concluded that all persons employed in agriculture and horticulture should be able to engage in collective bargaining, including those on family or smaller farms, but in accordance with a separate labour relations scheme that is sufficiently modified to reflect the particular needs of the agricultural sector.^{footnote 402[402]}

The single most critical issue raised by farm owners before the Task Force was the threat of work stoppage.^{footnote 403[403]} In response to this and many other submissions, the Task Force recommended that all forms of work stoppage be prohibited and replaced by a dispute resolution process that provided an arbitration process for the final and binding resolution of all outstanding matters between the parties following exhaustion of the negotiation process.^{footnote 404[404]} It also recommended that there be an Agricultural Labour Relations Act, to be administered by a separate Board.^{footnote 405[405]}

The Task force reviewed the legislation in other provinces, where extending bargaining rights to agricultural workers is the norm, and concluded that the availability of the right to bargain collectively in these provinces has not had a significant negative impact on farm economics.^{footnote 406[406]} This state of national affairs clearly does not preclude the government from offering a section 1 justification unique to Ontario, but it has not explained, and perhaps realistically cannot explain, why Ontario’s farming interests are so different as to warrant a complete exclusion rather than less intrusive means of achieving its objectives. The agricultural sector undoubtedly faces significant economic challenges, but so do many others, and in none of those sectors are employees deprived of access to a process of collective bargaining.

In 1994, the Agricultural Labour Relations Act, 1994 (ALRA), was enacted by the Ontario legislature, adopting most of the Task Force recommendations. Provisions of the ALRA included, among other things:

• a preamble indicating that it was in the public interest to extend collective bargaining rights to the sector and that agriculture and horticulture sectors have certain unique characteristics (e.g., seasonal production, climate and time sensitivity, perishable nature of agricultural and horticultural products, the need to maintain continuous processes to ensure the care and survival of animal and plant life);
• a prohibition against work stoppages (bargaining disputes that could not be resolved in bargaining or mediation were referred to final offer selection or, with the agreement of the parties, to voluntary interest arbitration);
• incorporation by reference of many key provisions of the LRA (subject to certain modifications), including: provisions relating to the duty to bargain in good faith; successor rights; unfair labour practices; and enforcement by a special agriculture industry division of the OLRB;
• certification and decertification of bargaining agents;
• restrictions on the certification of bargaining units containing seasonal workers (such bargaining units could be certified only if a regulation allowed it and the unit contained only seasonal employees); and
• protections to ensure that family members could perform work for the employer, despite any provisions in a collective agreement, a union constitution, the ALRA, or the LRA, as it then was.

The ALRA was in effect from June 1994 to November 1995. During that period, the United Food and Commercial Workers Union was certified as the bargaining agent for a single bargaining unit in Leamington, Ontario, and filed two other certification applications.

In 1995, the ALRA was repealed in its entirety and the Labour Relations and Employment Statute Law Amendment Act (Bill 7) was enacted. In addition to terminating any agreements reached under the ALRA, Bill 7 terminated any certification rights of unions. Bill 7 was enacted pursuant to an initiative of the government and repealed the only statute ever to extend union and collective bargaining rights to Ontario’s agricultural workers.

In Dunmore v. Ontario (Attorney General),^{footnote 407[407]} the Supreme Court of Canada considered a challenge to the constitutionality of the exclusion of agricultural workers from the LRA. Farm workers argued that Bill 7, combined with section 3(b) of the LRA, prevented them from establishing, joining and participating in the lawful activities of a union, denying them a statutory protection enjoyed by most occupational groups in Ontario.

The Supreme Court quoted from the Ontario Court (General Division) decision in which Justice Sharpe stated that the government of Ontario has:

…a very different perspective from that of its predecessor on appropriate economic and labour policy and, indeed, rejects any attempt to include agricultural workers in its labour relations regime ((1997), 155 D.L.R. (4^th) 193, at p. 199). Moreover, the affidavit evidence in this case presents in stark contrast two conflicting views of an appropriate labour relations regime for agricultural workers in Ontario, one denying the existence of any industrial relations rationale for the current exclusion, and the other maintaining that the collective bargaining model of the ALRA or the LRA would unduly threaten the province’s farm economy (pp. 201-2). This latter view is evidently shared by the Legislature of Alberta, which is the only other Canadian province to exclude agricultural workers from its labour relations regime.^{footnote 408[408]}

In Dunmore, in discussing the scope of state responsibility with respect to freedom of association, the Court asked whether:

…in order to make the freedom to organize meaningful, section 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups. More broadly, it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime substantially contributes to the violation of protected freedoms.^{footnote 409[409]}

The answer to the question of whether excluding agricultural workers from the LRA contributed to the violation of protected freedoms was unequivocal. The Supreme Court stated:

…it is reasonable to conclude that the exclusion of agricultural workers from the LRA substantially interferes with their fundamental freedom to organize. The inherent difficulties of organizing farm workers, combined with the threats of economic reprisal from employers, form only part of the reason why association is all but impossible in the agricultural sector in Ontario. Equally important is the message sent by s. 3(b) of the LRA, which delegitimizes associational activity and thereby ensures its ultimate failure. Given these known and foreseeable effects of s. 3(b), I conclude that the provision infringes the freedom to organize and thus violates s. 2(d) of the Charter.^{footnote 410[410]}

In declaring the exclusion of agricultural workers from the LRA to be invalid, the Supreme Court gave the government eighteen months to implement amending legislation if the government saw fit to do so. In providing this remedy, the Court neither required nor forbade the inclusion of agricultural workers in a full collective bargaining regime, whether in the LRA or a special regime applicable only to agricultural workers such as the ALRA. In deferring to the legislature, the Court stated that the question of whether agricultural workers have the right to strike is one better left to the legislature, especially given that this right was withheld in the ALRA.^{footnote 411[411]}

In 2002, in response to Dunmore, the Ontario legislature enacted the Agricultural Employees Protection Act, 2002 (AEPA) that came into force on June 17, 2003. Employees employed in agriculture are covered by that Act.

10.4.2 The Agricultural Employees Protection Act, 2002

The AEPA creates a separate labour relations regime for agricultural workers. The AEPA grants agricultural workers the right to form and join an employees’ association, to participate in its activities, to assemble, to make representations to their employers through their association on their terms and conditions of employment and the right to be protected against interference, coercion and discrimination in the exercise of their rights. The employer must give an association the opportunity to make representations respecting terms and conditions of employment and the employer must listen to those representations or read them. Complaints under the AEPA can be filed with the Agriculture, Food and Rural Affairs Appeals Tribunal. The Act falls under the purview of the Ministry of Agriculture, Food and Rural Affairs.

In Fraser, a majority of the Supreme Court of Canada held that section 5 of the AEPA, correctly interpreted, protects not only the right of employees to make submissions to employers on workplace matters, but also the right to have those submissions considered in good faith by the employer. In declining to find the AEPA unconstitutional, the Court noted that no effort had been made to resort to the Agriculture, Food and Rural Affairs Appeals Tribunal and that the Tribunal should be given a fair opportunity to demonstrate its ability to appropriately handle the function given to it by the AEPA.^{footnote 412[412]} The Court stated:

Section 11 of the AEPA specifically empowers the Tribunal to make a determination that there has been a contravention of the Act, and to grant an order or remedy with respect to that contravention. The Tribunal may be expected to interpret its powers, in accordance with its mandate, purposively, in an effective and meaningful way.^{footnote 413[413]}

The Court also reaffirmed that a meaningful process of collective bargaining guarantees a process rather than an outcome or access to a particular model of labour relations. In other words, the Wagner Act is a particular model of collective bargaining but not a necessary model, to ensure the right of employees to meaningfully associate in pursuit of collective workplace goals.

10.4.3 Employees engaged in agriculture – factors to be taken into account

In addition to rights of employees to freedom of association, the formulation of labour policy for agricultural employees and the implementation of such policy by legislation of necessity involves the consideration of numerous other factors. Some of these are set out below. This list is not exhaustive; there are undoubtedly others.

1. After the promulgation of the AEPA, the Supreme Court of Canada released its decision in Saskatchewan Federation of Labour, wherein it further elaborated on what is meant by the Charter guarantee in section 2(d), holding that the right to strike is an essential part of meaningful collective bargaining and that where such right is abrogated, an independent, effective dispute resolution process must be put in place.
2. Some agricultural enterprises have unique characteristics including:  seasonal production; climate and time sensitivity; the perishable nature of agricultural products; and the need to maintain continuous processes to ensure the care and survival of animal and plant life.
3. Strikes by agricultural workers could have significant adverse impact on planting, growing and harvesting, on animal health and safety, on bio-security and on other important interests.
4. Agricultural workers are vulnerable in their workplaces. This vulnerability was the subject of comment by Justice Bastarache in Dunmore. Hefound that legislative protection of agricultural workers and their rights to organize are absolutely critical considering their plight. He stated that:

   Distinguishing features of agricultural workers are their political impotence, their lack of resources to associate without state protection and their vulnerability to reprisal by their employers; as noted by Sharpe J., agricultural workers are "poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility".^{footnote 414[414]}

   The vulnerability of agricultural workers was also the subject of comment by Justice Abella in Fraser where she stated that they are particularly vulnerable employees and quoted with approval Professor David M. Beatty who vividly observed that agricultural workers are among the most economically exploited and politically neutralized individuals in our society.^{footnote 415[415]} She went on to quote Beatty:

   Because they are heavily drawn from a migrant and immigrant population, these workers face even more serious obstacles to effective participation in the political process. … Denying agricultural workers the benefits of [collective bargaining] means that the legal processes which enable much of the rest of our workforce to be involved in decision-making at the workplace in a realistic way are unavailable to the farm workers. Thus a group of workers who are already among the least powerful are given even less opportunity than the rest of us to participate in the formulation and application of the rules governing their working conditions.

   (Putting the Charter to Work: Designing a Constitutional Labour Code (1987), at p. 89)^{footnote 416[416]}

   We urge that attention be paid to Professor Lynk’s Review. In his discussion of the agricultural employee exemption he points out a number of significant factors to be taken into account by policy makers:

   1. The social science literature is rich in its description of the particularly vulnerable and precarious nature of the temporary migrant workers employed in the Ontario agricultural sector. In 2013, there were approximately 20,845 temporary migrant labourers employed through the Seasonal Agricultural Worker program (SAWP) and another 1,260 foreign labourers working through other federally administered agriculture migrant programs.^{footnote 417[417]}
   2. [The label unfree labour] fits the condition of modern migrant agricultural work, these scholars maintain, insomuch as these workers are highly dependent upon their employer because [of] their restricted immigration and work permit status (which ties them to their employer and work location) and through their worksite living accommodations. These workers cannot exercise, without exceptional difficulty, what every other person in the Canadian labour market has the formal right to do: to leave a job that is unsatisfactory and search for better work elsewhere. This diminished status of unfree labour is compounded by the inability of these migrant agricultural workers to effectively access collective voice and collective bargaining to articulate, defend and improve their employment interests.^{footnote 418[418]}
   3. A number of scholars have remarked upon the racial basis of the migrant labour program, both in its origins and through to the present day, where the ethnicity and the lack of effective power of the migrant agricultural workforce in Canada and Ontario replicates a troublesome racial hierarchy that does not fit well within the aspirational social and multicultural goals of a liberal democracy.^{footnote 419[419]}
   4. [W]orking conditions of the migrant farm labourers are demanding, even harsh in many cases. The work usually involves long hours, physically challenging work, rudimentary living conditions and, commonly, adverse consequences for the health of many migrant agricultural workers. Almost all of them live in dormitories at their workplace, in circumstances where both their working and their private lives are closely regulated by their employers.^{footnote 420[420]}
5. The leading International Labour Organizations forums on freedom of association have criticized Ontario in recent years for its statutory barriers to effective collective bargaining for agricultural workers.^{footnote 421[421]}
6. While some agricultural enterprises are family farms, others included in the scope of the AEPA resemble traditional manufacturing businesses. In United Food and Commercial Workers Canada v. MedReleaf Corp., Chair Bernard Fishbein observed as follows:

   As Vice-Chair MacDowell observed about the result he reached in Wellington Mushroom, … there may be little, or no, industrial relations basis in not treating MedReleaf’s employees as any other employees under the LRA. Whatever the merits of an agricultural exclusion from the LRA, these employees work in a factory-like environment with typical industrial-like features like job classifications, etc. Many, if not all, of the unique characteristics of agriculture, its seasonal nature, its sensibility to climate, the need to protect animal and plant life, referred to among the purposes of the AEPA, do not appear to be present here.^{footnote 422[422]}

   The observations of Vice-Chair MacDowell in the Wellington Mushroom Farm case and referred to by Chair Fishbein are apposite. Vice-Chair MacDowell, in describing the business of the respondent employer in the case, stated that the nature of this kind of farm does not differ in any material respect from a typical manufacturing plant.^{footnote 423[423]} He further observed that:

   There is no close involvement with the family farm. The production process is not seasonal, but rather, resembles a production cycle. The labour force is neither casual nor transitory. The operation is of considerable size, employing close to 200 employees in a single location with a factory atmosphere; and the company is much less economically vulnerable than many other employers to which The Labour Relations Act applies.^{footnote 424[424]}

   These observations by Chair Fishbein and Vice-Chair MacDowell underscore what Justice Bastarache said in Dunmore that the agricultural sector is highly diversified and that there is an increasing trend…towards corporate farming and complex agribusiness.^{footnote 425[425]}

7. The family farm may warrant special legislative treatment. As was said in Dunmore:

   Judging from the parties’ evidence, I am satisfied both that many farms in Ontario are family-owned and -operated, and that the protection of the family farm is a pressing enough objective to warrant the infringement of s.2(d) of the Charter.^{footnote 426[426]}

   [A]griculture occupies a volatile and highly competitive part of the private sector economy, that it experiences disproportionately thin profit margins and that its seasonal character makes it particularly vulnerable to strikes and lockouts.^{footnote 427[427]}

10.4.4 The defects of the AEPA

We offer no legal opinion on the constitutionality of the AEPA. However, viewed through a policy lens (which must be informed by and take into account Charter principles), and as a practical matter, in our view, the AEPA is defective as it contains barriers to the realization by agricultural employees of their ability to advance their interests and to protect themselves. The AEPA creates an illusion that there is some potential effective voice and some protection for farm workers, whereas the reality in Ontario is that there is effectively neither of these. Some of these barriers are outlined below. This list does not purport to be exhaustive.

In our view:

1. While the AEPA does provide the right to join an employees association, it does not clearly state that such employees have the right to join a trade union and participate in its lawful activities.
2. Unlike the LRA, the AEPA does not prohibit an employer or employers’ organization from participating in or contributing financial or other support to an employee association or trade union. The AEPA does not protect employee independence to the same degree as does the LRA.
3. The scope of protection of employees against employer misconduct is insufficient as the Tribunal has no jurisdiction analogous to that of the OLRB to remedy employer misconduct for engaging in such activities as coercion, intimidation, threats, promises or undue influence.
4. The AEPA contains no right to collective bargaining. It contains no obligation on the parties to meet, engage in a meaningful dialogue, and make reasonable efforts to arrive at a collective agreement. As Justice Abella  noted in her dissenting opinion in Fraser, quoting B.C. Health Services: [T]he right to collective bargaining cannot be reduced to a mere right to make representations.^{footnote 428[428]} Indeed, as noted by Justice Abella in Fraser, a review of the Legislative record makes it clear that there was no intention to create any right to collective bargaining. The then Minister of Agriculture and Food, the Honourable Helen Johns, when she introduced the AEPA confirmed that the legislation included no such right. She stated:

   However, I need to make one thing very clear here. While an agricultural employee may join an association that is a union, the proposed legislation does not extend collective bargaining to agricultural workers. (Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 46A, October 22, 2002, at p. 2339.^{footnote 429[429]}

   Since the AEPA imposes no duty to bargain in good faith to reach a collective agreement, the Agriculture, Food and Rural Affairs Appeals Tribunal has no jurisdiction or mandate to grant a remedy to any party for failure to bargain in good faith. Contrast this to the remedial jurisdiction of the OLRB in section 43(2) of the LRA where the OLRB is empowered to order first contract arbitration and under section 96 to remedy bad faith bargaining.

5. The AEPA does not require the employer to recognize the exclusive agency or bargaining authority of the union or employee association. Contrast this to the LRA which in section 45(1) states that: Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein. In section 73(1), the LRA provides: No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them. And finally, the LRA further provides that the OLRB may grant first contract arbitration if the employer refuses to recognize the bargaining authority of the trade union.
    

   The exclusivity of the trade union as agent for employees is a long-standing and basic principle in Canadian labour law. We can do no better than quote Justice Abella in Fraser when she stated as follows:

   With the exception of specific public services and the construction industry in Quebec (An Act respecting labour relations, vocational training and workforce management in the construction industry, R.S.Q., c. R-20), majoritarian exclusivity has remained a defining principle of the Canadian labour relations model (Rayner, at p. 16; Carter et al., at para. 574).

   The reason for the protection is grounded in common sense and the pre-1944 experience. A lack of exclusivity allows an employer to promote rivalry and discord among multiple employee representatives in order to divide and rule the work force, using tactics like engaging in direct negotiations with individual employees to undercut the credibility of the union . . . at the bargaining table (Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (1980), at p. 126; see also Adams, at para. 3.1750).

   …

   The inevitable splintering of unified representation resulting from the absence of statutory protection for exclusivity is particularly undermining for particularly vulnerable employees.^{footnote 430[430]}

   …

   Permitting multiple representatives of disparate individuals or groups in such a workplace effectively nullifies the ability of its workers to have a unified and therefore more cogent voice in attempting to mitigate and ameliorate their relentlessly arduous working conditions.^{footnote 431[431]}

6. The AEPA neither prohibits nor provides a right for agricultural workers to strike and does not provide for any alternate dispute resolution if their discussions reach an impasse. Contrast this to the provisions of the ALRA which substituted final offer selection to resolve bargaining disputes in place of strikes and lockouts. In Dunmore, the Supreme Court of Canada stated: the question of whether agricultural workers have the right to strike is one better left to the legislature….^{footnote 432[432]} It is now clear that the abrogation of the right to strike by government, permissible in appropriate circumstances, must be accompanied by an alternative dispute resolution mechanism.
7. Like the LRA, the AEPA makes no distinction between the family farm and agribusiness. All employees in agriculture are excluded from the coverage of the LRA. The implementation of the AEPA covering all agricultural employees is, as a matter of public policy, overbroad.
8. There is no mandatory dispute resolution mechanism for enforcement of collective agreements under the AEPA and, as a result, any negotiated collective agreement negotiated pursuant to the AEPA would be difficult if not impossible to enforce. In contrast, section 48(1) of the LRA requires that: Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
9. As a practical matter the AEPA does not work as a framework for the exercise of employees of their rights of freedom of association. No collective agreements have been signed in the agricultural sector since the passage of the legislation. This is consistent with the intention of the government at the time of passage of the legislation not to implement collective bargaining legislation.

In conclusion, in our view, the AEPA does not provide an effective mechanism for employees to access collective bargaining and to improve their working conditions, leaving them powerless to deal with their employer or to influence their terms and conditions of employment. At a practical level, the lack of any effective voice and protection for agricultural workers over the years, since the AEPA was enacted, is proof of the ineffectiveness of the Act.

10.4.5 Other Canadian jurisdictions

For the most part, other Canadian jurisdictions include agricultural and horticultural workers under their general labour relations statutes. In this regard, we note that in reviewing the consequences of the near-universality of extending bargaining rights to Canadian agricultural workers, the 1992 Task Force concluded that the availability of the right to bargain collectively in these provinces has not had a significant negative impact on farm economics.^{footnote 433[433]}

Alberta has recently passed legislation that will extend labour relations coverage to agricultural workers (these changes are not yet in effect). Our understanding is that the Alberta government is consulting with stakeholders in the sector with a view to developing sector-specific regulations.

Before 2014, Quebec’s Labour Code provided, in section 21, that: Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division unless at least three of such persons are ordinarily and continuously so employed. The alleged purpose of this provision was to exempt small farms from the provisions of the Code. However, the effect of section 21of the Code was that, on a farm that employed two full-time workers and many seasonal employees, the seasonal workers were not covered by the provisions of the Code and were effectively denied the benefits of organizing and of collective bargaining. Section 21 of the Code was challenged in the Quebec Superior Court and was found to be unconstitutional. In response to the Superior Court decision, in 2014, the current government amended the Code implementing Special Provisions Applicable to Farming Businesses. The Special Provisions are modeled after the Ontario AEPA. They are applicable to agriculture operations where fewer than three employees are ordinarily and continuously employed. In agriculture, where three or more employees are ordinarily and continuously employed, the general provisions of the Code apply allowing for certification of bargaining agents and collective bargaining. As with the former section 21 of the Code, the fact that many seasonal workers may be employed in a farm business does not trigger the application of the general provisions of the Code relating to the rights of employees to join a union and engage in collective bargaining. Those rights are triggered only where three employees are ordinarily and continuously employed.

From a policy point of view, it is significant that agricultural workers in every province except Alberta have the same collective bargaining rights as other employees excepting the exemptions in Quebec and New Brunswick, which appear to be based on the family farm (discussed above).

By way of summary, in our view, all of the factors outlined, below, point strongly in support of the removal of the exclusion of agricultural workers from the LRA:

1. the particularly vulnerable and precarious nature of temporary migrant workers employed in the Ontario agricultural sector, including the dependence arising from their restricted immigration and work permits status, which ties them exclusively to their employer and which significantly exacerbates the power imbalance between employees and employers;
2. the racial basis of the migrant labour program, both in its origins and through to the present day;
3. the demanding – and even harsh, in many cases – nature of the work, long hours, rudimentary living conditions, commonly adverse health consequences, and close regulation of their private lives;
4. the overbroad exclusion of enterprises, which are, for all intents and purposes, traditional manufacturing businesses and do not have a seasonal nature, or the sensitivity to climate or the need to protect animal and plant life;
5. the lack of any truly effective mechanism in the AEPA for agricultural workers to protect themselves and advance their interests, both at a theoretical and at a practical level;
6. the fact that almost every other Canadian jurisdiction allows farm workers access to collective bargaining;
7. the availability of fair and reasonable alternative dispute resolution mechanisms as alternatives to strikes and lockouts, which is one of the primary reasons in support of the exclusion; and
8. the values which underlie the Charter protection for collective bargaining, namely that it enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.^{footnote 434[434]}

Conclusion

The continued exclusion of agricultural workers from the LRA is unjustified.

10.4.6 Horticultural employees

The LRA does not apply to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture.

Horticulture is not defined in the LRA, but has been interpreted by the OLRB to include activities such as gardening, landscaping, nurseries, growing trees, etc.

Horticultural workers are excluded from the LRA but have no separate labour relations regime.

Horticultural workers are not excluded from the labour relations legislation in other Canadian jurisdictions.

There is no valid policy reason to exclude this category of employees from LRA coverage. Having said that, it is recognized that horticultural employees may be engaged in work necessary to ensure the growing of and the health and survival of plants and trees, and that strikes by horticultural workers in some circumstances could have significant adverse impact on planting, growing, harvesting and caring for plants and trees.

Recommendations

Recommendations for agricultural and horticultural employees:

132. Agricultural and horticultural employees should be included in the Labour Relations Act, 1995 and be given the same rights and protections as other employees.
133. The government should consider whether protection of the family farm is a pressing and substantial objective warranting the exclusion of some or all persons employed on a family farm from Labour Relations Act, 1995 coverage. We offer no specific advice to the government on the appropriate definition of family farm but caution that any definition should not be overbroad so as to impair the Charter rights of other agricultural workers.
      

     Some, but not all, agricultural enterprises have unique characteristics, including:  seasonal production; climate and time sensitivity; the perishable nature of agricultural products; and, the need to maintain continuous processes to ensure the care and survival of animal and plant life. In some circumstances, strikes by agricultural workers could have a profound adverse impact on planting, growing and harvesting, on animal health and safety, on bio-security and on perishable products. Horticultural enterprises employees may also be required to maintain continuous employment to secure the growth, health and survival of plants and trees and, therefore, employers may be peculiarly adversely affected by strikes. With this reality in mind, we make the following recommendations.

134. The Labour Relations Act, 1995 should be amended to provide the Ontario Labour Relations Board with authority to prohibit or limit a strike by employees of an employer in the agricultural or horticultural sector where the employer’s enterprise needs to be maintained to protect some or all of planting, growing and harvesting or the integrity, health and safety and/or security of plant or animal life.
135. Where a strike is prohibited, the Ontario Labour Relations Board should be given authority in the Labour Relations Act, 1995 to be able, at its discretion, to require mediation of the collective bargaining dispute and to request the mediator, if the matter is not resolved, to make recommendations for terms of settlement of the labour dispute including a recommendation on an appropriate dispute resolution mechanism in the absence of a mediated settlement.
136. The Labour Relations Act, 1995 should be amended to provide that the Ontario Labour Relations Board must impose an efficient and effective dispute resolution mechanism to resolve collective bargaining impasse in any case where it has abrogated or limited the right to strike for agricultural or horticultural employees and where the impasse is not resolved on a voluntary basis by the parties to the dispute. The mechanisms for final dispute resolution should include: final offer selection (including issue by issue final offer selection); mediation/arbitration; arbitration; or any other dispute resolution mechanism which is capable of resolving, in a fair, effective and expeditious manner disputes that arise between employees and employers.

10.5 Provincial judges

The LRA does not apply to provincial judges. Judges are appointees to judicial office and are not employees. Under the constitution they enjoy judicial independence.^{footnote 435[435]} The processes through which judicial associations are involved in fixing the terms and conditions applicable to judges are determined by various Framework Agreements between the various judges associations and government and in legislation such as Appendix A to the Judicature Act. From a constitutional point of view, this is not an issue that can be addressed by the LRA.^{footnote 436[436]}

Recommendation

137. The exclusion of provincial judges should remain unchanged.

10.6 A Person employed as a labour mediator or labour conciliator

The LRA does not apply to a person employed as a labour mediator or labour conciliator. This exclusion is designed to preserve the neutrality of persons who are engaged in mediation and conciliation. Being a member of a trade union could lead to conflicts of interest, real or perceived, and detract from the mediators’ or conciliators’ important role as neutrals in dispute resolution. There is no policy reason to change the current law.

Recommendation

138. The exclusion of a person employed as a labour mediator or labour conciliator should remain unchanged.

10.7 Professionals – members of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity

The LRA provides that no person shall be deemed to be an employee who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity.

It may be that these professionals were seen as having adequate protection through their self-regulated professional bodies. As well, their exclusion may have seemed appropriate given the conflict between a professional’s continuing duty and obligation to his or her patients or clients and the right to strike. Certainly, many have questioned whether the historical rationales for excluding these groups from the LRA continue to be relevant. There are, for example, 19 non-health professions and 27 regulated health professions in Ontario; however, only architectural, dental, land surveying, legal and medical professions are excluded under the LRA.^{footnote 437[437]} In sum, there are 46 regulated professions and employees belonging to 41 of these regulated professions entitled to unionize and collectively bargain either under the LRA or another labour relations statute.^{footnote 438[438]}

In the late 1960s, the Task Force on Labour Relations (better known as the Woods Task Force) reviewed the exclusions that then existed under the federal legislation (broadly similar to what exists in the LRA today) and could find no justification for any of them when measured against the principle of freedom of association.^{footnote 439[439]} The Woods Task Force recommended that the statutory right to bargain collectively should be extended to licensed professionals, among others. When the Canada Labour Code was subsequently enacted in 1973, it reflected this advice, providing an expansive definition of employee including licensed professionals.

In 1993, the Ontario Labour Relations Act was amended and the list of exclusions under the legislation was revised. The new law allowed architects, dentists, land surveyors, legal professionals and some doctors^{footnote 440[440]} to apply for certification.

In 1995, the law was changed again, and the previously existing exclusions, including those for professionals were reintroduced.

This prohibition directed at professionals employed in a professional capacity is inconsistent with, and contrary to, the constitutional guarantee of freedom of association. The Court’s purposive approach to section 2(d) was most recently summarized by Chief Justice McLachlin and Justice LeBel in Mounted Police Association, where they said:

The jurisprudence on freedom of association under section 2(d) of the Charter…falls into two broad periods. The first period is marked by a restrictive approach to freedom of association. The second period gradually adopts a generous and purposive approach to the guarantee.

…after an initial period of reluctance to embrace the full import of the freedom of association guarantee in the field of labour relations, the jurisprudence has evolved to affirm a generous approach to that guarantee. This approach is centred on the purpose of encouraging the individual’s self-fulfillment and the collective realization of human goals, consistent with democratic values, as informed by the historical origins of the concepts enshrined in s. 2(d)…^{footnote 441[441]}

There is no suggestion in any of the recent jurisprudence that professionals employed in a professional capacity should be denied the constitutional right of freedom of association. Quite the contrary, the broad and purposive interpretation of section 2(d) of The Constitution Act, 1982 mandates the removal of this exclusion and extending LRA coverage to this group of employees.

The fact that some of these professional employees may provide essential services is not a reason to deny their constitutional rights to freedom of association. Although speculative, it is acknowledged that there could be occasions where the exercise of constitutional rights (including the right to strike) by some of these professional employees could impair the delivery of essential services by public sector employers.

Our use of the term essential services in this section of the Report should be interpreted in a manner consistent with that mandated by Chief Justice Dickson in the Reference Re Public Service Employee Relations Act (Alberta), above. As noted, above, In Saskatchewan Federation of Labour, the Supreme Court confirmed that where the right to strike is abrogated for an essential service an independent, effective dispute resolution process is required.

In conclusion, the LRA should be amended to extend coverage to members of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity, recognizing that, in appropriate circumstances, removing or limiting the right to strike may be warranted.

Recommendations

139. Members of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity should be included in the Labour Relations Act, 1995 and be given the same rights and protections as other employees.
      

     Some, but not all, professional employees may provide essential services to members of the public. In recognizing this fact, we remain cognizant of the opinion of Chief Justice Dickson in Alberta Union of Provincial Employees, Canadian Union of Public Employees and Alberta International Fire Fighters Association^{footnote 442[442]} that, to conform with section 1, any limit on freedom to associate should not be impaired by an overbroad definition of essential services but that, where interruption of service would endanger the life, personal safety or health of the whole or part of the population or involved persons essential to the maintenance and administration of the rule of law, it may mean the abrogation of the right to strike is warranted as a reasonable limit on freedom of association. With this caution in mind, we make the following recommendations.

140. With respect to the professionals whose inclusion may result from our recommendations, the Labour Relations Act, 1995 should be amended to provide the Ontario Labour Relations Board with authority to prohibit or limit a strike by those providing essential services to a community.
      

     Some professionals now engage in collective bargaining outside the scope of the LRA, These negotiations are pursuant to Framework Agreements that provide effective dispute resolution mechanisms for the resolution of differences. Before the Ontario Labour Relations Board deals with issues relating to potential strikes/lockouts, it is assumed that the Board  will provide the parties with an opportunity to address the issues in a Framework Agreement, subject to the approval of the Board.

141. Where a strike by professional employees is prohibited or limited, the Ontario Labour Relations Board should be given authority in the Labour Relations Act, 1995 to be able, at its discretion, to require mediation of the collective bargaining dispute and to request the mediator to make recommendations for terms of settlement of the labour dispute, including a recommendation on an appropriate dispute resolution mechanism in the absence of a mediated settlement.
142. The LRA should be amended to provide that the Ontario Labour Relations Board must impose an efficient and effective dispute resolution mechanism to resolve collective bargaining impasse in any case where it has abrogated or limited the right to strike for professional employees providing essential services and where the impasse is not resolved on a voluntary basis by the parties to the dispute. The mechanisms for final dispute resolution should include: final offer selection (including issue by issue final offer selection); mediation/arbitration; arbitration or any other dispute resolution mechanism which is capable of resolving in a fair, effective and expeditious manner disputes that arise between professional employees and employers.

10.8 A person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations

The LRA provides that no person shall be deemed to be an employee who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

All Canadian jurisdictions exempt those performing management functions or those who are employed in a confidential capacity in matters relating to labour relations from the definition of employee under their respective labour legislation (although there is some variation in the scope of the managerial exclusion).

Persons who perform managerial functions and who direct and control employees have a clear conflict of interest with the interests of employees under the LRA. They are responsible for implementation of the policies and procedures of the employer and usually can impose some level of discipline on employees under their direction and control. Similarly, those employed in a confidential capacity in matters relating to labour relations possess information confidential to the employer and could not function effectively if included in bargaining units. Furthermore, the exclusion of managers and persons employed in a confidential capacity in matters relating to labour relations helps to ensure that the union representing employees remains independent of employer influence.

The only substantive issue encountered in our review is whether the managerial exclusion should be modified to allow for collective bargaining for persons whose functions are more supervisory than managerial and are at the entry level of managerial ranks. This issue is not a priority for reform at this time and the issue of who exercises managerial functions is best left to the OLRB to interpret and apply in the different industries and contexts which come before it.

There is no policy reason to question the exclusion of this group of persons from coverage under the LRA.

Recommendation

143. The exclusion regarding managers and those employed in a confidential capacity in matters relating to labour relationsshould remain unchanged.