L'Écuyer c. Côté						2013 QCCS 973
J.D. 2836    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
N° :		500-17-058367-106
		500-17-058556-104
DATE :	March 11, 2013
______________________________________________________________________
PRESIDING				THE HONOURABLE	THOMAS M. DAVIS, J.S.C.
______________________________________________________________________
# 500-17-058367-106
JOHANNE L'ÉCUYER
-and-
PIERRE LOCAS
Plaintiffs
v.
ROBERT CÔTÉ
Defendant
-and-
TRAVAILLEURS ET TRAVAILLEUSES UNIS DE L'ALIMENTATION ET DU COMMERCE, SECTION LOCALE 501 (TUAC)
Mis en cause
-and-
LE PROCUREUR GÉNÉRAL DU QUÉBEC
Intervenor
# 500-17-058556-104
PROCUREUR GÉNÉRAL DU QUÉBEC
Plaintiff
v.
TRAVAILLEURS ET TRAVAILLEUSES UNIS DE L'ALIMENTATION ET DU COMMERCE, SECTION LOCALE 501 (TUAC)
Defendant
-and-
JOHANNE L'ÉCUYER
-and-
PIERRE LOCAS
Mis en cause
______________________________________________________________________
JUDGEMENT
______________________________________________________________________

INTRODUCTION

[1]           Johanne L’Écuyer and Pierre Locas have been farmers for some 30 years. Currently, the principal activity of their farm is growing cabbages and cauliflowers, as well as the production of certain garden plants. The clientele for the farm’s produce varies, depending on the item.

[2]           L’Écuyer and Locas are actively involved in the operation of the farm. Beginning in February, they prepare the seeds and watch over the germination of the plants in greenhouses, which cover an area of approximately 70,000 feet². Generally, only they participate in this initial part of the growing cycle.

[3]           However, they cannot bring their products to market on their own. They need help. For a number of years, L’Écuyer and Locas have been hiring workers from Mexico (the migrant workers). They begin to arrive in March and return home at the end of October. Since 2008, L’Écuyer and Locas have employed six migrant workers each year.

[4]           L’Écuyer and Locas’ children occasionally work on the farm. Local workers are also employed from time to time, but are hired on a daily basis. Otherwise, the migrant workers are the only employees of the farm.

[5]           On July 10, 2008, les Travailleurs et travailleuses unis de l’alimentation et du commerce (the Union) deposited a petition under the Quebec Labour Code[1] (the Code) to be certified as the bargaining agent of the farm’s workers. The Union asked the Commission des relations du travail (the Commission) to certify the Union to represent: « Tous les salariés au sens du Code du travail à l’exclusion des employés de bureau et des employés affectés à l’administration. »

[6]           L’Écuyer and Locas contested the motion on the basis of paragraph 5 of section 21 of the Code, which reads as follows:

 

21. A droit à l'accréditation l'association de salariés groupant la majorité absolue des salariés d'un employeur….   Les personnes employées à l'exploitation d'une ferme ne sont pas réputées être des salariés aux fins de la présente section, à moins qu'elles n'y soient ordinairement et continuellement employées au nombre minimal de trois.

21. Any association of employees comprising the absolute majority of the employees of an employer…is entitled to be certified.   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.

[7]           The Labour Relations Agent charged with determining whether or not the required conditions for certification were present refused to certify the Union, and the matter was referred to the Commission for a hearing.

[8]           Although the Commission acknowledged that L’Écuyer and Locas were engaged in the operation of the farm that did not ordinarily and continuously employ three persons, in a decision rendered on April 16, 2010, it proceeded to certify the Union. In order to do so, the Commission declared paragraph 5 of section 21 of the Code unconstitutional, as being contrary to section 2(d) of the Canadian Charter of Rights and Freedoms[2] (the Charter) and article 3 of the Quebec Charter of Human Rights and Freedoms[3] (the Quebec Charter). Both of these sections recognize freedom of association as a fundamental right in our society.

[9]           The Commission then declared the impugned paragraph inoperable in relation to the consideration of the certification petition with which it was seized.

[10]        The Commission dismissed the Union’s argument based on section 15(1) of the Charter, which provides that individuals have “the right to the equal protection and equal benefit of the law without discrimination”. The Union argues that paragraph 5 of section 21 is discriminatory towards farm workers and, particularly, towards the migrant workers.

[11]        The Court is seized with two motions in judicial review.

[12]        The Attorney General asks the Court to declare that paragraph 5 of section 21 does not infringe on freedom of association as guaranteed 2(d) of the Charter and article 3 of the Quebec Charter Alternatively, if the Court decides that there is an infringement, it asks the Court to declare that it is justified in accordance with the section 1 of the Charter and section 9.1 of the Quebec Charter.

[13]        L’Écuyer and Locas ask the Court to declare that the Commission exceeded its jurisdiction in declaring that paragraph 5 of section 21 of the Code was unconstitutional and inoperable.

[14]        By way of a cross demand the Union contests the Commission’s decision. The Union contests the Commission’s refusal to declare paragraph 5 of section 21 unconstitutional as being discriminatory under section 15(1) of the Charter. It also asks the Court to declare the impugned paragraph invalid as being contrary to both sections 2(d) and 15(1) of the Charter.

THE FACTUAL BACKGROUND

[15]        The parties acknowledge that the Commission generally reported the evidence adduced before it in an adequate and accurate manner. Therefore, the following factual background is largely drawn from the Commission’s decision.

[16]        Prior to the reform of the Code in 1964, farm workers were entirely excluded from its provisions dealing with union recognition and collective bargaining. The reform actually provided agricultural workers with increased rights, given that, provided they worked on a farm which ordinarily employed at least three people, they were entitled to be represented by a union for the purposes of collective bargaining.

[17]        The Code was slightly modified in 1965 to add the word continuously to paragraph 5 of section 21. Since then this paragraph has remained unchanged.

[18]        Notwithstanding the limitations on the right of farm workers to associate for the purposes of the Code’s general collective bargaining regime, they are covered by several important sections of the Code. They have the right to belong to the association of employees of their choice and are covered by the sections of the Code dealing with unfair labour practices.

[19]        When the impugned paragraph was adopted, the use of migrant workers was basically nonexistent. It is now a fact of life for many Quebec farmers. The degree of utilization of migrant workers, however, remains unclear. The Commission discussed the workforce utilization as follows:

[105]     En 2007, le ministère québécois de l'Agriculture, des Pêcheries et de l'Alimentation évaluait à 29 327 le nombre d'exploitations agricoles au Québec. De façon générale, 75 000 des quelque 125 000 emplois de ce secteur sont comblés par les propriétaires de l'exploitation eux-mêmes, par leurs conjoints ou leurs enfants. On estime que dans le secteur de l'horticulture (qui comprend, entre autres, la production de légumes, la cueillette de fruits, la production de fleurs et plantes en pot ou en champs), 10 000 emplois sont comblés par la main-d'œuvre familiale et qu'environ 30 000 autres personnes sont embauchées par ces entreprises. Près de 27 000 d'entre elles le sont sur une base saisonnière, ou non régulière.

[106]     Aucune statistique précise n'a été fournie quant à la proportion des emplois saisonniers du secteur agricole qui est comblée par des travailleurs en provenance du Mexique ou du Guatemala. Par voie de conséquence, il n'est pas possible de déterminer avec exactitude l'importance relative de cette main-d'œuvre dans le secteur plus particulier de la production maraîchère, des serres et des pépinières. Il est en conséquence difficile de déterminer avec précision le pourcentage de travailleurs migrants dans le cas des fermes qui emploient ordinairement et continuellement moins de trois personnes à l'exploitation de la ferme.[4]

[20]        Over the years, organizations dedicated to furthering the interests of both farm employers and farm employees, including migrant workers, have been created.

[21]        The Programme des travailleurs agricoles saisonniers du Mexique et des Antilles was initially agreed to in 1974 by the Canadian, United States and Mexican governments as a means of allowing farmers to procure labour during peak periods.

[22]        Subsequently, the governments of Canada and Mexico renewed the agreement and it became the Programme des travailleurs agricoles saisionnniers (PTAS).

[23]        The government of Canada informs the government of Mexico of the number of agricultural workers that it expects will be required in any given year. Mexico is responsible for recruiting and selecting the workers and for ensuring the respect of the conditions stipulated by the Canadian government for these workers to work here.

[24]        PTAS provides for a standard employment contract, which must be signed by the employer and the migrant worker.

[25]        The Fondation des entreprises en recrutement de main-d’œuvre agricole étrangère (F.E.R.M.E.) was founded by five associations of farm producers. It provides various services to producers, for which it bills them.

[26]        F.E.R.M.E. has been given a role in the administration of PTAS. It is responsible for communicating the job offers of farm producers to the Mexican authorities. In addition, along with other organizations, it participates in the annual meetings convened to discuss issues arising under PTAS with representatives of the Canadian and Mexican governments.

[27]        Notably, there are no employee organizations that are given this opportunity, despite the fact that since 2001 the United Farm Workers of America (UFWA), and laterally the Union, have been lobbying the Canadian government about the working conditions of migrant workers.

[28]        The role of F.E.R.M.E. does not extend to the portion of the PTAS meetings where remuneration is discussed. This question is solely in the domain of the two governments. However, it does participate in the portion of the meetings where the application or modification of PTAS, or any changes to the standard employment contract are considered.

[29]        F.E.R.M.E. also has a role in the logistics related to the employment of migrant workers. It inspects living quarters, organizes the air transport for the workers and meets them at the airport. It coordinates departures, arrivals, transfers, and contract extensions. In the event an employee leaves his or her employment without authorization, F.E.R.M.E. will communicate the necessary documentation to Canadian immigration authorities.

[30]        F.E.R.M.E. has also established a defence fund to assist its members who are the object of unionization drives, including L’Écuyer and Locas.

[31]        The Centre d’appui aux travailleurs agricoles migrants (CATAM) was formed in 2004, and is financed by the Union. The organization provides information to migrant workers concerning their rights and their ability to access certain social programs. Among other things, it may also accompany them to medical appointments and assist them in filing claims with the Commission de la santé et de la sécurité du travail.

[32]        The relationship between F.E.R.M.E. and CATAM has not been free from tension. In one communication circulated to its members, F.E.R.M.E. advised them that they should not tolerate migrant workers being accompanied to medical appointments by representatives of CATAM. The text of the circular reads in part as follows:

[…]

•           Dans tous les cas, l'employeur est le seul responsable de conduire le travailleur chez le médecin, et il ne peut pas déléguer cette responsabilité à d'autres personnes, comme les représentants du Centre d'appui aux travailleurs migrants.

•           De plus, la période de convalescence du travailleur doit se faire obligatoirement dans le logement mis à sa disposition par l'employeur. Si le travailleur veut retourner chez lui ou aller ailleurs, les consentements de l'employeur et du représentant gouvernemental sont essentiels.

•           Advenant le cas où le travailleur voudrait se faire accompagner ou représenter par des gens du Centre d'appui pour les travailleurs migrants, il faudra informer le travailleur que le recours à des personnes autres que celles prévues au contrat ne sera pas toléré et que toute absence du travailleur du logement de l'employeur sera automatiquement considéré comme un abandon d'emploi et qu'il pourrait se voir exclu du programme.

[…][5]

[33]        It is with this as the backdrop that the Union has been trying to organize farm workers in Quebec. As of November 13, 2009, it had enjoyed some success, with seven bargaining certificates, including three covering migrant workers (exhibit PG-41).[6]

[34]        However, where the workforce is largely made up of migrant workers, the success has been more mitigated, a fact that the Commission related as follows:

[185]      Peu de tentatives de syndicalisation ont par ailleurs visé des groupes dans lesquels sont fortement représentés des travailleurs agricoles saisonniers en provenance du Mexique ou du Guatemala. Ces tentatives n’ont donné lieu à une accréditation que lorsque n'était pas impliquée l'exception du cinquième alinéa de l'article 21 du Code (voir TUAC, section locale 501 c. La Légumière Y. C. inc., 2007 QCCRT 467 (CanLII), 2007 QCCRT 0467 ).[7]

THE PARTIES’ POSITIONS

a) the standard of review

 

[35]        For L’Écuyer and Locas and the Attorney General, the appropriate standard of review is the correctness of the Commission’s decision. This is because the matter before the Commission was purely constitutional in nature and, therefore, the Commission is not entitled to err.

[36]        The Union’s position is nuanced. It agrees that the standard of review is the correctness of the decision. However, it submits that the reviewing court must show deference to the conclusions of fact reached by the Commission. It refers the Court to the recent Supreme Court of Canada decision in the matter of Doré v. Barreau du Québec.[8]

 

 

b) section 2(d) of the canadian charter of rights and freedoms

 

[37]        The Attorney General refers the Court to the recent Supreme Court of Canada decision in Ontario (Attorney General) v. Fraser.[9] It argues that while this decision clearly confirms that workers have the right to associate and become members of a union, the freedom to associate does not give them the right to revindicate a particular regime of collective bargaining or labour relations. The Commission’s decision gives the employees of L’Écuyer and Locas access to the specific regime of labour relations and collective bargaining set out in the Code. This goes beyond what the Charter requires to respect an employee’s freedom to associate.

[38]        The Attorney General points out that the Union admitted before the Commission that the employees of L’Écuyer and Locas have been able to join an association of employees as set out in the Code. Therefore, the principal issue for the Union is not the right of the employees to associate, but rather their right to negotiate in accordance with the Code’s general regime of collective bargaining.

[39]        It refers the Court to Dunmore v. Ontario (Attorney General),[10] where the Supreme Court of Canada addressed the situation which prevailed in Ontario prior to Fraser. The rights of agricultural workers in Ontario to organize for the purposes of collective bargaining were essentially nonexistent, as they were completely excluded from the Ontario Labour Relations Act.[11] For the Attorney General, the situation in Quebec is completely different, given that agricultural workers can be members of a union and have the full protection of the Code in relation to unfair labour practices. Moreover, the exclusion provided for at paragraph 5 of section 21 is not a total exclusion, but only excludes agricultural workers from being certified for collective bargaining when the farm ordinarily and continuously employs less than three people.

[40]        With respect to the Supreme Court's acknowledgment in Fraser that agricultural employers are required to consider employee representations in good faith,[12] it argues that this duty already exists in Quebec under articles 6 and 7 of the Civil Code.

[41]        The Attorney General posits that the Union failed to make the necessary proof to demonstrate that the employees attempted to negotiate with the employer and were rebuffed. Given that the Supreme Court has consistently held that the true exercise of freedom of association must lead to meaningful negotiation, proof of the employees’ inability to negotiate was essential to demonstrate that the impugned legislation hinders the liberty of the employees to associate.

[42]        The position of L’Écuyer and Locas is similar. In the three principal decisions on the matter, Dunmore, Fraser and Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia,[13] the Supreme Court of Canada recognizes that freedom of association does not give individuals the right to a particular process or model of negotiation. It provides them the right to collectively present demands to the employer, but does not guarantee the result or the framework.

[43]        In Delisle v. Canada (Deputy Attorney General),[14] the Supreme Court states that: “It is accordingly settled that the exclusion of a group of workers from a specific statutory regime does not preclude the establishment of a parallel, independent employee association, and thus does not violate s. 2(d) of the Charter.”[15] This has not been modified by any of Dunmore, Health Services or Fraser. Therefore, the exclusion of certain farm workers from the collective bargaining provisions of the Code is not a limitation on their freedom to associate.

[44]        L’Écuyer and Locas also take issue with the Commission's position that: “L'exclusion du régime d’accréditation entraîne une privation totale des activités associatives légitimes des travailleurs concernés en regard de la négociation collective.”[16] They argue that the Commission’s emphasis on the exclusion of the employees from the certification regime is incorrect. This emphasis takes away from the real debate before the Commission, which was whether or not the employees’ right to freely associate with a union is compromised by paragraph 5 of section 21.

[45]        Contrary to the position taken by the Commission, the collective bargaining regime under the Code is not the only way for a group of individuals to collectively present their demands on working conditions to the employer. Moreover, there are already significant negotiations which take place between Canada and Mexico, which have direct impact on the working conditions of the migrant workers.

[46]        Like the Attorney General, L’Écuyer and Locas posit that articles 6, 7 and 1375 of the Civil Code create an obligation for them to negotiate with their employees in good faith. They also refer the Court to articles 2267 and following of the Civil Code regarding association. Implicit in these articles is also an obligation of good faith. Given these articles, the Civil Code ensures that the employees will have the right to negotiate in good faith.

[47]        The Union refers the Court to the principle established by the Supreme Court of Canada in Fraser that the right of free association: “[…] requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. [and] […] extends to realization of collective, as distinct from individual, goals.”[17] For the Union paragraph 5 of section 21 of the Code significantly hinders the employees’ right to collectively make these representations and is, therefore, unconstitutional.

[48]        The Union, further argues that the legislative framework, which applies to agricultural workers must provide for a process of negotiation that meets the objectives set out by the Supreme Court. Under the current legislation, the situation of farm workers in Quebec is the same as that of Ontario farm workers prior to Dunmore. There is no framework for negotiation.

[49]        A real framework for negotiation is one which requires the employer to consider the demands of the employees, presented collectively. Even if the employees of L’Écuyer and Locas have been able to associate, the current legislation prevents them from effectively presenting their collective demands.

c) justification

[50]        The Attorney General states that the principal objective of the legislator is the protection of the family farm. Subsidiary objectives include the desire that Quebec’s territory be occupied and that the law provides a framework for farmers to occupy it.

[51]        In invoking the need to protect the family farm, the Attorney General argues that it has asserted a pressing and substantial objective, which satisfies the first stage of the justification analysis.[18]

[52]        Moving to the proportionality stage of the analysis, the Attorney General refers the Court to Alberta v. Hutterian Brethren of Wilson Colony.[19] It argues that the Supreme Court recognizes that government has a measure of leeway in determining whether limits set out in legislation are justified under section 1 of the Charter. Section 1 does not demand that the choice of the legislator “is perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”.[20]

[53]        Given the legislator's purpose of protecting the family farm, to show that the Code’s infringement on the freedom of association of farm workers is rationally connected to this goal, the government “must show a causal connection between the infringement and the benefit sought on the basis of reason or logic”.[21]

[54]        For the Attorney General, the government has provided ample evidence of a causal connection between the infringement and the benefit sought by the legislation.

[55]        The Attorney General also argues that paragraph 5 of section 21 is the least drastic measure which the government could adopt to protect the family farm; the impairment is minimal.

[56]        For the Attorney General, the fact that in Dunmore the Supreme Court referred to the Quebec regime as a less drastic measure than the one adopted in Ontario is indicative that paragraph 5 of section 21 is a reasonable measure.

[57]        Moreover, in Dunmore, the Supreme Court acknowledges: “that the protection of the family farm is a pressing enough objective to warrant the infringement of section 2(d) of the Charter.”^[22]

[58]        It goes on to recognize that “unionization involving the right to collective bargaining and to strike can, in certain circumstances, function to antagonize the family farm dynamic”.[23] Although the Supreme Court overturned the impugned legislation in Dunmore, the Attorney General underlines that the situation in Quebec is different. In Ontario there was a total exclusion from the standard labour relations regime. Here farm workers have the right to join a union. They simply do not have the right to the collective bargaining process set out in the Code. They also benefit from the stipulations of the Code on unfair labour practices.

[59]        For the Union the Commission’s analysis on the question of justification is unassailable. It followed the test set out in R. v. Oakes[24] and made appropriate reference to Bryan agreeing that the legislator’s motive of protecting the family farm should be accepted as a pressing and substantial objective at the initial stage of the analysis.[25]

[60]        It is on the proportionality aspect of the analysis where the parties diverge.

[61]        The Union argues that the Commission correctly concluded that the proof as to whether unionization has negative consequences on family farms was inconclusive. In fact, this was also the conclusion reached by the Supreme Court in Dunmore.

[62]        The Union then refers the Court to the Supreme Court’s decision in Hutterian Brethren, and concludes that the proportionality test was not met either. It is clear that the inability of these workers to unionize and bargain collectively causes them a considerable prejudice, but there is no proof of a beneficial effect for the protection of the family farm.

d) section 15 of the charter

 

[63]        The Union’s principle argument in its Motion in Judicial Review is that paragraph 5 of section 21 of the Code is discriminatory under section 15(1) of the Charter as it creates a situation where farm workers and, more particularly, migrant workers do not enjoy the same access to collective bargaining as other workers.

[64]        The Union adds that even where a law appears to be neutral the courts must evaluate whether it has a discriminatory effect due to the characteristics of the persons to whom it applies. Referring to the Supreme Court of Canada in the matter of Andrews v. Law Society of British Columbia,[26] the Union posits that the right to protection against discrimination referred to in section 15(1) must receive a generous interpretation. Therefore, the nature of the work performed by an individual (agriculture) or the provenance of the worker (immigrant) may be analogous grounds of discrimination encompassed by section 15(1).

[65]        The Union points out that under the Code’s general certification regime one worker can form a bargaining unit appropriate for collective bargaining. Under paragraph 5 of section 21 of the Code, a single agricultural worker will never be able to form an appropriate bargaining unit and will never benefit from collective bargaining.

[66]        Finally the Union refers to the reasons of Justice L’Heureux-Dubé in Dunmore, which consider that a difference in treatment arising due to a person’s professional status may be an analogous ground of discrimination for the purposes of section 15(1) of the Charter. Farm workers have always been a marginalized group in society, which strengthens the conclusion that their professional status is an analogous ground.

[67]        The Union then goes on to state that the distinctions are even more pronounced for migrant workers. The mere fact that they cannot work in Canada for a period in excess of eight months means that, under the current legislation they will almost never enjoy full freedom of association, including the right to bargain collectively, unless they are fortunate enough to work on a farm which ordinarily and continuously employs more than three domestic workers.

[68]        Hence, paragraph 5 of section 21, exacerbates the situation of the migrant workers, an already disadvantaged group. The criteria set out in Withler v. Canada (Attorney General)[27] to demonstrate that it creates a distinction based on an analogous ground of discrimination have been met by the Union.

[69]        The Attorney General takes a different view. It suggests that paragraph 5 of section 21 does not contravene section 15(1) of the Charter, because it treats all agricultural workers in the same way. Furthermore the professional status of workers employed on farms which ordinarily and continuously employ fewer than three workers is not an analogous ground.

[70]        Referring to Withler, the Attorney General argues that:

“An analogous ground is one based on “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203 , at para. 13. Grounds including sexual orientation, marital status, and citizenship have been recognized as analogous grounds of discrimination.”[28]

[71]        For the Attorney General, the difference in treatment must result from the personal characteristic. Differences based on professional status are not covered by section 15(1).

[72]        Moreover, even if the impugned legislation creates a distinction based on an analogous ground the claimant must then demonstrate that it has “a discriminatory impact in terms of prejudicing or stereotyping in the sense expressed in Andrews.”[29]

q

e) the remedy

 

[73]        The parties have a different view of how the Commission should have proceeded following its conclusion that paragraph 5 of section 21 was unconstitutional. The Attorney General expressed that the Commission should not have certified the Union, because its decision gives the Union access to the general collective bargaining regime. This specific access is not required in order to assure that the employees enjoy their right of freedom of association. The legislator should have been given the opportunity to consider an alternative regime.

[74]        For the Union, once the Commission declared that the impugned paragraph was unconstitutional and inoperable all of the requirements of the Code had been met and the Commission had no choice, but to certify it.

 

 

DISCUSSION

a) the standard of review

 

[75]        The Supreme Court of Canada’s decision in the matter of Dunsmuir v. New Brunswick[30] sets out the criteria which a reviewing court must consider in determining the appropriate standard of review. In the present matter, the Commission was required to consider the constitutionality of a specific provision of the Code. Dunsmuir makes it clear that such a decision must be correct:

[58]       For example, correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322 .  Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 (CanLII), [2003] 2 S.C.R. 504 , 2003 SCC 54; Mullan, Administrative Law, at p. 60.[31]

[76]        The Doré decision, referred to by the Union, deals with a different scenario. Maitre Doré did not contest the constitutionality of a legislative provision. Rather, he argued that the decision of the disciplinary committee seized with a complaint against him was unconstitutional in and of itself, as being a limitation on his freedom of speech. As the Supreme Court of Canada states, the analysis of this kind of question is different from the analysis required when the constitutionality of the legislative provision is under attack:

[36]       As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), 2009 SCC 37, [2009] 2 S.C.R. 567 , the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual (see also Bernatchez).  When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts.  Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), 2002 SCC 1, [2002] 1 S.C.R. 3 , at para. 39).  When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of general application.[32]

[77]        It cannot be successfully argued, that the decision of the Commission is an individual administrative decision where the Commission was called upon to apply the Charter values to a particular set of facts. Rather, it is a decision which assesses whether or not paragraph 5 of section 21 complies with the Charter and whether it impinges on freedom of association.

[78]        This does not mean that when the Court looks at the factual conclusions of the Commission it should be insensitive to the fact that the Commission had the benefit of hearing witnesses during a lengthy hearing. However, the Court must still be convinced that the Commission rendered the correct decision, failing which the decision should be revised.

b) section 2(d) of the canadian charter of rights and freedoms

 

[79]        Any discussion of whether or not paragraph 5 of section 21 of the Code places unreasonable limits on the freedom of a group of employees to associate must consider the judgments of the Supreme Court of Canada in Dunmore, Health Services and Fraser. There is one constant in all three judgments. The freedom of employees to associate is not an empty shell. It entails the right to collectively present demands related to employment conditions to the employer, who has a duty to receive them in good faith.

[80]        In Health Services, the Supreme Court of Canada was seized with a dispute surrounding the decision of the government of British Columbia to limit the right of employees working in the healthcare sector to negotiate certain working conditions. The Court held that certain provisions of the legislation were unconstitutional because they substantially interfered with certain fundamental aspects of the collective bargaining process.

[81]        For the Supreme Court: “[T]he concept of freedom of association under s. 2(d) of the Charter includes this notion of a procedural right to collective bargaining.”[33]

[82]        This does not mean that the objectives, which employees wish to attain through collective bargaining, are protected. However, freedom of association entails more than a group of employees having the ability to present their collective demands to the employer. The employer must meet the employees and discuss their demands:

Thus the employees’ right to collective bargaining imposes corresponding duties on the employer.  It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.[34]

[83]        In Dunmore, the Supreme Court of Canada was faced with a situation, which was somewhat similar to the one before this Court. All agricultural workers in Ontario were completely excluded from the Ontario Labour Relations Act. The Court held that the exclusion was unconstitutional, and accorded a delay to the Ontario government to adopt legislation which did not offend the Charter.

[84]        The resulting legislation, the Agricultural Employees Protection Act, 2002,[35] was the object of the litigation ultimately disposed of in Fraser. In order to fully understand the scope of this legislation, it is pertinent to reproduce certain sections:

 

1.  (1)  The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.

(2)  The following are the rights of agricultural employees referred to in subsection (1):

1. The right to form or join an employees’ association.

2. The right to participate in the lawful activities of an employees’ association.

3. The right to assemble.

4. The right to make representations to their employers, through an employees’ association, respecting the terms and conditions of their employment.

5. The right to protection against interference, coercion and discrimination in the exercise of their rights.

[…]

5.  (1)  The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.

(2)  For greater certainty, an employees’ association may make its representations through a person who is not a member of the association.

(3)  For the purposes of subsection (1), the following considerations are relevant to the determination of whether a reasonable opportunity has been given:

1. The timing of the representations relative to planting and harvesting times.

2. The timing of the representations relative to concerns that may arise in running an agricultural operation, including, but not limited to, weather, animal health and safety and plant health.

3. Frequency and repetitiveness of the representations.

(4)  Subsection (3) shall not be interpreted as setting out a complete list of relevant considerations.

(5)  The employees’ association may make the representations orally or in writing.

(6)  The employer shall listen to the representations if made orally, or read them if made in writing.

(7)  If the representations are made in writing, the employer shall give the association a written acknowledgment that the employer has read them.

[85]        The facts of Fraser are also useful to consider. Four employees of an Ontario mushroom farm contacted the United Food and Commercial Workers (UFCW) in 2002. By the spring of 2003 seventy percent (70%) of the employees of the farm had joined the UFCW. The employer refused to recognize the UFCW as the representative of the employees and it asked to be recognized as the bargaining agent under the Ontario Labour Relations Act.

[86]        The UFCW also tried to negotiate with another agricultural undertaking, a greenhouse operation in Chatham Ontario. There was one negotiating meeting which lasted fifteen minutes. The employer took the position that it was not required to negotiate with the UFCW. A subsequent meeting lasted five minutes.

[87]        Rather than making a complaint under the Agricultural Employees Protection Act, 2002, the employees sought relief in the courts, arguing that their exclusion from the Ontario Labour Relations Act was unconstitutional as a violation of their right to freedom of association, recognized by section 2(d) of the Charter.

[88]        The Ontario Court of Appeal agreed, but the Supreme Court of Canada did not.

[89]        Discussing Dunmore and Health Services the Supreme Court expressed the view that section 2(d) of the Charter protects the right of individuals to associate in order to achieve collective goals. Legislation which renders the realization of those goals impossible effectively restrains freedom of association, limiting its scope. However, the Court disagreed with the Ontario Court of Appeal that the Charter requires legislators, in all cases and for every sector of activity, to adopt legislation which establishes a uniform labour relations regime. The associative activity is protected but not the negotiation process or the ability to attain a particular result. “[…] no particular type of bargaining is protected.  In every case, the question is whether the impugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals.”[36]

[90]        Looking at the Agricultural Employees Protection Act, 2002 the Supreme Court then asked itself “whether the AEPA makes meaningful association to achieve workplace goals effectively impossible, as was the case in Dunmore.”[37]

[91]        It answers the question stating: “If the AEPA process, viewed in terms of its effect, makes good faith resolution of workplace issues between employees and their employer effectively impossible, then the exercise of the right to meaningful association guaranteed by s. 2(d) of the Charter will have been limited, and the law found to be unconstitutional in the absence of justification under s. 1 of the Charter.”[38]

[92]        The Court’s answer focuses on sections 5(6) and (7) of the Agricultural Employees Protection Act, 2002.

[101]     Sections 5(6) and (7) are critical.  They provide that the employer shall listen to oral representations, and read written representations, and acknowledge having read them.  They do not expressly refer to a requirement that the employer consider employee representations in good faith.  Nor do they rule it out.  By implication, they include such a requirement.[39]

[93]        Finally, the Supreme Court recognized that, while the Ontario Act does not provide for a particular manner of collective bargaining, this does not lead to the conclusion that Ontario wanted to exclude agricultural employees from the right to collective bargaining guaranteed by section 2(d) of the Charter.[40]

[94]        But what of the impugned legislation in the present case? Has the Union met its burden of demonstrating that the Government of Quebec wanted to exclude agricultural workers from collective bargaining? The scope of that burden was reviewed by the Supreme Court of Canada in Dunmore as follows:

[126]     Charter litigation decisions cannot be made in a factual vacuum.  However, it is important to assess carefully on whom the burden of proof should lie, and the degree of proof required.  Cory and Iacobucci JJ. in Delisle present a helpful outline, at para. 76: 

A Charter claimant who seeks to establish that impugned legislation infringes a Charter right or freedom by virtue of its purpose bears the onus of establishing the alleged invalid purpose on a balance of probabilities. The ordinary rules of evidence applicable in civil trials apply.  Accordingly, it cannot be assumed that the purpose of a law is invalid solely because an invalid purpose is a plausible purpose of the law.  There must be clear evidence that an invalid purpose is probable.  In addition, the evidence must rebut the presumption of constitutionality. That is, if there are two equally probable purposes for the impugned legislation, and one of these purposes is valid and is not inextricably linked to the invalid purpose, then the valid purpose is presumed to apply:  Slaight Communications, supra, at p. 1078, per Lamer J. (as he then was); Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554 , at pp. 581-82, per Lamer C.J. However, where the Charter claimant is able to adduce a preponderance of evidence of the invalid purpose, the presumption of constitutionality is rebutted and the court is required to find an infringement of the Charter.[41]

[95]        The Commission concluded that an invalid purpose was probable and that the Union had met its burden of proof. The following passages are particularly relevant:

[308]     En l'absence de tout autre régime pouvant permettre d'atteindre les mêmes fins, l'exclusion du régime général prévue au Code empêche les travailleurs saisonniers exclus d'influencer véritablement sur leurs conditions de travail.  L'État contribue ainsi à ce que soit nié à ce groupe de personnes la plénitude des avantages qui découlent de la liberté d'association qui est constitutionnellement garantie à leur égard.

[309]     Que cette exclusion ait été imposée en même temps que le législateur élargissait l’application du régime d’accréditation à l’ensemble des travailleurs agricoles n’y change rien. Le résultat est le même : aucun employeur n'a l'obligation légale de reconnaître une association qui représente les travailleurs agricoles exclus et encore moins d'entreprendre avec elle des négociations de bonne foi.

[310]     Le Procureur général plaide que le syndicat n'a pas fait la démonstration de son impossibilité de conclure une entente concernant les conditions de travail des salariés de Ferme L & L puisqu'il n'a fait aucune démarche en ce sens auprès de l'employeur. L'argument est un peu court.

[311]     Il est manifeste que Ferme L&L, en contestant la requête en accréditation, n'a pas l'intention d'entreprendre avec le syndicat des discussions sur les conditions de travail des six salariés visés par la requête. De plus, la réaction spontanée de monsieur Locas, peu après que les salariés aient adhéré au syndicat, et la participation de l'entreprise au « fonds de défense » mis sur pied par F.E.R.M.E. en vue de contester d'éventuelles requêtes en accréditation, sont autant d'indices de l'impossibilité pour ces travailleurs d'entreprendre de véritables négociations collectives en dehors du régime d'accréditation prévu au Code.

[312]     Plus généralement, le fait que la majorité des membres de F.E.R.M.E. contribuent à ce fonds de défense, la position que cet organisme exprime en leur nom à l'égard de la syndicalisation ainsi que son hostilité à l'endroit du CATAM sont des indices qu'un véritable processus de négociation de bonne foi ne peut s’établir, dans ce secteur d'activités, en dehors du cadre prévu au Code ou d’un régime qui lui serait équivalent.

[313]     Cette conclusion s'inscrit dans le contexte où le groupe de personnes concernées, constitue un groupe défavorisé et vulnérable comme nous le verrons plus loin. Contrairement à ce qui prévaut lorsque l’employeur est l’État puisque ses décisions sont assujetties à la Charte canadienne, les entreprises agricoles ne peuvent être directement contraintes à l’obligation de négocier de bonne foi avec leurs salariés en dehors du régime du Code.[42]

[96]        The Court agrees with the Commission that the Union has met its burden. While there is no evidence that it had actually attempted to negotiate with L’Écuyer and Locas on behalf of the workers, the conclusion that the employer had no intention of negotiating was one which could be drawn from the evidence on a balance of probabilities. Perhaps none of the elements retained by the Commission would individually lead to the conclusion that it was impossible for the Union to conclude an agreement on behalf of the employees, but when they are taken together, they certainly make such a conclusion probable.

[97]        Neither L’Écuyer and Locas, nor their association, F.E.R.M.E., has been proactive in seeking out common ground on working conditions with the employees or the Union. Rather, their focus has been to rely solely on PTAS to determine the working conditions for the migrant workers, all the while excluding the employees, their unions and CATAM. The Commission was correct in concluding that this behaviour is not indicative of intent to negotiate.

[98]        Applying the principles confirmed by the Supreme Court of Canada in Fraser to the present matter, the Court concludes that, in relation to agricultural workers who work on farms which ordinarily and continuously employ less than three workers, paragraph 5 of section 21 of the Code is discriminatory as being a significant hindrance on their ability to exercise their fundamental right of freedom of association.

[99]        The argument of L’Écuyer and Locas and the Attorney General that the situation in Quebec is different, given that farm workers do benefit from many important sections of the Code, including the right to be members of an association of employees, does not save paragraph 5 of section 21. This is because the rights which the employees have under the Code are void of any requirement on the employer to meet the employees collectively and listen to their demands in good faith.

[100]     Articles 6 , 7 and 1375 C.C.Q. do not change this fact. Contrary to the situation under the Agricultural Employees Protection Act, 2002, they do not require L’Écuyer and Locas (or any other farm employer ordinarily and continuously employing less than three workers) to meet with an association of employees to negotiate working conditions. Nor do they provide a means for the employees or their association to require the employer to negotiate with them. Given that there is no requirement to negotiate, or even meet with the employees as a group, the obligations set out in these articles of the Civil Code are not engaged and the Union cannot rely on them to ensure that it will be met or that its demands will be reviewed in good faith by the employer.

[101]     There lies the fundamental difference between the situation under the Agricultural Employees Protection Act, 2002 and the situation in Quebec. The Ontario act sets out a requirement that the employer must receive and consider the collective demands of its employees and implies an obligation of good faith on the part of the employer. By contrast, the provisions of the Code that apply to farm workers contain no such requirement.

[102]     The only conclusion that can be reached is that the Commission was correct in deciding that paragraph 5 of section 21 substantially interferes with the exercise of farm workers’ right of freedom of association and is prima facie unconstitutional.

c) Justification

 

[103]     At this stage the Court must be guided by the teachings of the Supreme Court of Canada beginning with its decision in Oakes. Justice Dickson sets out an overriding principle, which must be considered in the ensuing analysis.

[64]       A second contextual element of interpretation of s. 1 is provided by the words “free and democratic society”. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[43]

[104]     It must ask itself whether the Attorney General has met its burden of demonstrating on a balance of probabilities that the limitation on the rights of farm workers to freely associate “is reasonable and demonstrably justified in a free and democratic society.”[44]

[105]     Looking first at whether the Attorney General presented a pressing and substantial objective, the Commission followed the approach set out by the Supreme Court in Bryan. It concluded that the desire to protect the family farm coupled with the legislator’s wish that land be occupied is indeed a pressing and substantial objective. The Commission acknowledged that it should not be engaged in an evidentiary contest at this initial stage of the analysis and that, by asserting this objective, the Attorney General had met its initial burden.

[106]     This analysis is correct.

[107]     The Commission then considered the proportionality aspect of the analysis, asking itself whether there was a rational link between the stated objective and the means selected by the legislator to achieve it. It concluded that:

[…] il n'y a pas de preuve concluante permettant d'établir que l'accès des travailleurs agricoles exclus au régime de représentation syndicale du Code entraînerait nécessairement des conséquences néfastes pour les petites fermes ou les fermes familiales. L'affirmation des experts du Procureur général voulant que « en cas de grève de la main-d'œuvre, cela aurait également pour effet de générer une défaillance de l'entreprise » ne repose sur aucune analyse ni donnée scientifique. Il s'agit d'une simple spéculation et, à la limite, d’une conclusion qui ne se base que sur l'idée reçue que la syndicalisation des travailleurs dans un secteur d'activités a un effet nécessairement négatif pour la santé économique de ce secteur.[45]

[108]     This conclusion is also correct. The report of Forest Lavoie essentially concludes that farm undertakings or businesses are in as fragile an economic state in 2009 as they were in 1960. However, but for a statement that: “En cas de grève de la main-d’œuvre, cela aura également pour effet de générer une défaillance de l’entreprise”,[46] the report contains little or no reference to the effect, or lack thereof, of unionization on the economic fortunes of family farms.

[109]     The right to strike is not an essential component of free association, as it has been defined by the Supreme Court of Canada.[47] If the threat of strikes is the overriding issue affecting the livelihood or survival of the family farm, the legislator could consider a regime of collective bargaining for farm workers, which excludes the right to strike.

[110]     The Commission did not mention the report of Mathieu Arès and Yannick Noiseux.[48] It at least contains some analysis of whether unionization poses a threat to the family farm. The Court considers this question to be an important one in the analysis that the Commission had to undertake.

[111]     Arès and Noiseux go into great detail to analyze the economic health of all sectors of Quebec agriculture and conclude that labour costs are not the principle cause of the economic fragility of certain farm sectors, particularly livestock breeding.[49] They also point out that the number of farms engaged in vegetable production is increasing, from 2,356 in 2003 to 2,395 in 2006.[50] Finally, from 2003 to 2008, the number of migrant workers placed by F.E.R.M.E. has jumped from 2,968 to 6,627.[51]

[112]     They opine that the link between the economic performance of a business and the presence of a union is neutral.

[113]     At the very least, this report is additional evidence of the correctness of the Commission’s conclusion, that there is no rational link between excluding a large number of farm workers from the general collective bargaining regime of the Code and the protection of the family farm.

[114]     At this stage the Attorney General, has the burden of demonstrating that there is: “a causal connection between the infringement and the benefit sought on the basis of reason or logic.”[52] More than simple speculation is required to establish this connection. At the risk of repeating itself, the Court agrees with the Commission that the threat of a strike is not sufficient, particularly given that the right to strike is not an essential element of the right of free association.

[115]     The Commission then goes on to analyse the question of minimal impairment. It concludes that the exclusion of a large number of farm workers from the general collective bargaining regime of the Code is a measure which is too severe in light of the stated objective of the legislator to protect the family farm. It points out that there are other less invasive ways for the legislator to achieve the same goal, which would not effectively prevent this group of workers from negotiating collectively with their employers:

[395]     L'objectif de protection des fermes familiales ou des petites entreprises agricoles pourrait être atteint en employant des mesures moins attentatoires qu'une exclusion totale de tout régime. On peut penser à l'établissement d'un régime de représentativité syndicale particulier et l’instauration d’un mécanisme de négociation adapté à ce secteur, par exemple, par l'introduction de négociations régionales ou par secteurs d'activités. Il n’appartient pas à la Commission de déterminer ce que pourrait être une mesure moins attentatoire puisqu’il n'appartient pas aux tribunaux de dicter au législateur quelle forme doit prendre la reconnaissance de la liberté d’action syndicale et celle de négocier. Cependant, force est de constater qu’en l’espèce, l'exclusion totale du régime légal constitue, pour ces milliers de travailleurs, une atteinte qui n’est pas minimale.[53]

[116]     In Canada (A.G.) v. JTI-MacDonald Corp., the Supreme Court of Canada states that: “[…] the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives.”[54]

[117]     Is the legislator’s choice here reasonable?

[118]     The Court concludes that the Commission was correct in deciding that it is not reasonable.

[119]     The Commission refers to the alternative of the creation of a particular regime of collective bargaining for farm workers. The establishment of a particular regime of negotiation is precisely what the legislator did in Ontario and this approach was upheld by the Supreme Court in Fraser.

[120]     There is a great divide between a total exclusion from collective bargaining for workers who work on farms that ordinarily and continuously employ less than three employees and the ability to collectively present demands to the employer, albeit under a regime different from the one of general application.

[121]     Another option to protect the family farm might be to remove or modulate the right of farm workers to strike.

[122]     Different options could be considered for different agricultural sectors, as the evidence before the Commission clearly demonstrated that the economic challenges are not the same in every sector.

[123]     However, whatever option is chosen, it must reflect the reality that freedom of association for farm workers gives them the right to organize with a view to collectively presenting their demands to their employer who must receive them in good faith.

[124]     The concern raised by the Commission about the seasonal nature of many farm operations, particularly horticulture, greenhouses and market gardening is also well placed. The requirement that farm workers may only be organized if they are employed on farms that “ordinarily and continuously” employ three or more employees means that, under the current legislative regime, the employees of many of these farms will never be able to benefit from their right to free association and the right to collective bargaining. The reason is simple. The seasonal nature of production means that a vast number of these farms, while they ordinarily employ many more than three employees, do not do so on a continuous basis. Moreover, this reality exists whether the farm employs migrant or Canadian workers to meet its needs during the peak seasons.

[125]     Farm employers, therefore, find themselves in a privileged position, when compared to other seasonal industries whose employees can be unionized, despite working only part of the year. The ski and Great Lakes shipping industries are but two examples. More importantly, many farm workers find themselves in a disadvantaged position when compared to workers in other seasonal industries, as they have no real mechanism to collectively present their demands to their employers.

[126]     The Commission was correct in concluding that their exclusion from the collective bargaining regime is not a minimal impairment to their right to free association. Paragraph 5 of section 21 of the Code does not meet the reasonable alternative test set out in JTI-MacDonald.

[127]     As stated by the Supreme Court in Bryan: “The final stage of the Oakes analysis requires a balancing between the salutary and deleterious effects of the legislation.”[55]

[128]     Given the Court’s conclusion that the first two elements of the proportionality test have not been met, analysis of this aspect of the test is perhaps redundant.

[129]     Save to say that the Court is of the view that the Attorney General has failed to prove the salutary effects of the legislation. At best the evidence is inconclusive. On the other hand the deleterious effect on the right of free association for many farm workers has been clearly established.

 

d) section 15(1) of the canadian charter

[130]     The analysis of what constitutes an analogous ground of discrimination must start by considering the wording of the section itself, which gives credence to the position of the Attorney General. While section 15(1) requires that a law must apply equally to all, without discrimination, it refers to forms of discrimination which are based on personal characteristics of the person.

[131]     The requirement that the purported discrimination be based on the personal characteristics of the individual or the group was enumerated as follows by the Supreme Court of Canada in Andrews:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.  Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.[56]

[132]     Those words of Justice McIntyre have been repeated by the Supreme Court on a number of occasions since.[57]

[133]     The Supreme Court of Canada has also consistently applied a two part test for assessing section 15(1) claims. It is set out as follows in Withler:

[30]       The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?  (See Kapp, at para. 17.)[58]

[134]     The Supreme Court then commented on the application of the two steps tests as follows:

[31]       The two steps reflect the fact that not all distinctions are, in and of themselves, contrary to s. 15(1) of the Charter (Andrews; Law; Ermineskin Indian Band, at para. 188).  Equality is not about sameness and s. 15(1) does not protect a right to identical treatment.  Rather, it protects every person’s equal right to be free from discrimination.  Accordingly, in order to establish a violation of s. 15(1), a person “must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory” (Andrews, at p. 182; Ermineskin Indian Band, at para. 188; Kapp, at para. 28).[59]

[135]     The Commission dismissed the Unions arguments based on section 15(1). In relation to agricultural workers as a group, it decided that the distinction did not result from a personal characteristic or even from their professional status as agricultural workers. Rather it resulted from the nature of the undertaking in which they were working.[60]

[136]     The Commission was more nuanced in its treatment of the Union’s argument that the status of being a migrant worker could be an analogous ground of discrimination under section 15(1). It recognized that being a migrant worker could be an analogous ground, or might even be covered by the prohibition of discrimination on the basis of national or ethnic origin.[61]

[137]     However, it then went on to point out that the exclusion in paragraph 5 of section 21 applies to all seasonal agricultural workers equally, regardless of ethnic or national origin. Canadian and migrant workers are treated in exactly the same way.[62]

[138]     It added that there is nothing in the legislation which prevents migrant workers from being employed on farms that are not subject to the exclusion set out in the Code.[63]

[139]     The Court agrees with the Commission that the professional status of agricultural worker is not an analogous ground of discrimination covered by section 15(1). One’s status as an agricultural worker is not “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”.[64]

[140]     But what of the plight of the migrant worker?

[141]     The Court agrees with the Commission that one’s status as a migrant worker could indeed be an analogous ground or even a prohibited ground of discrimination in and of itself. One need only look at Andrews to conclude that citizenship can be a prohibited ground of discrimination. However, the answer to the question of whether paragraph 5 of section 21 is discriminatory does not stop there.

[142]     The first step of the test for asserting a section 15(1) claim is whether the law creates a distinction based on an enumerated or analogous ground. In this matter, the Court agrees with the Commission that the first step of the test is not met because faced by migrant workers is not a result of their immigrant status.

[143]     As set out in Withler, to be successful, the Union had the burden of demonstrating that the migrant workers are not receiving equal treatment because of the impugned statute. It did not meet this burden. As the Commission correctly pointed out, paragraph 5 of section 21 treats all agricultural workers in exactly the same way. If they work on farms that do not continuously and ordinarily employ at least three people, they will not be able to benefit from the collective bargaining provisions of the Code, regardless of where they come from.

[144]     The Union argues that the stipulations of PTAS, which do not allow the migrant workers covered by the program to stay in Canada year round, make it most unlikely for them to work for an employer covered by the collective bargaining regime. This is because many Quebec farms today rely almost entirely on migrant workers. Given that they cannot stay in Canada for more than eight months, these farms never continuously and ordinarily employ at least three people.

[145]     However, contrary to the Union’s assertion, the likelihood that a migrant worker will not work on a farm subject to the general collective bargaining regime is not a function of the individual’s status as a migrant worker, but rather a function of the nature of the industry in which he or she works.

[146]     Farming is generally a seasonal business. As the proof before the Commission demonstrated, in the vast majority of cases the work force will increase during the growing or the harvesting seasons. In the horticultural sector, there are 30,000 jobs filled by non family members. Of these 27,000 are seasonal.[65] Therefore, even if they could stay in Canada year around, the migrant workers would be just as unlikely to be employed by a farm that continuously and ordinarily employs at least three people. Their situation is not different from that of Canadian workers.

[147]     In concluding as it did, the Commission was correct. Any difference in treatment does not arise as a result of their status as migrant workers, but rather as a result of the nature of the industry in which they work. The effect of paragraph 5 of section 21 is the same for migrant farm workers and Canadian workers.

e) The Remedy

 

[148]     The Court will now turn to the decision of the Commission to certify the Union to represent the requested bargaining unit.

[149]     The Commission opined that it could not declare the impugned provision to be invalid:

[409]     La Commission, après avoir de la même façon constaté qu'une disposition législative est contraire à la Charte, ne peut en prononcer l'invalidité. Elle peut la déclarer inopérante. Une telle décision de la Commission n'a cependant d’effet qu’entre les parties au litige, bien qu'elle puisse avoir les effets d'un précédent.[66]

[150]     It nonetheless declared paragraph 5 of section 21 unconstitutional after considering the decision of the Supreme Court of Canada decision in Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), where the Court stated the following:

[45]       That said, a claimant can nevertheless bring a case involving a challenge to the constitutionality of a provision before the ATQ.  If the ATQ finds a breach of the Canadian Charter and concludes that the provision in question is not saved under s. 1, it may disregard the provision on constitutional grounds and rule on the claim as if the impugned provision were not in force (Martin, at para. 33).  Such a ruling would, however, be subject to judicial review on a correctness standard, meaning that the Superior Court could fully review any error in interpretation and application of the Canadian Charter.  In addition, the remedy of a formal declaration of invalidity could be sought by the claimant at this stage of the proceedings. [67]

[151]     Given that, following its declaration that the impugned provision was inoperable, all the conditions to certify were present; the Commission proceeded to certify the Union.

[152]     The Court cannot find fault with this reasoning.

[153]     However as the Supreme Court of Canada stated in Okwuobi a claimant can seek a formal declaration of invalidity in a subsequent judicial review proceeding before this Court. The Union asks for such a declaration and the Attorney General and L’Écuyer and Locas essentially ask for a declaration of validity.

[154]     The Court concludes that in the present matter it is appropriate to make a declaration of invalidity, given the infringement of the impugned paragraph on the freedom of association of a significant number of farm workers. However when making such a declaration, the courts have often deemed it appropriate to suspend it for a period of time to allow the legislator to reconsider the legislation.

[155]     In Dunmore, the Supreme Court of Canada suspended the declaration of invalidity of the impugned legislation for a period of eighteen months to allow amending legislation to be passed if the legislator saw fit to do so. Amending legislation providing for an alternate means of collective bargaining was adopted in Ontario and was upheld in Fraser.

[156]     In the matter of Nguyen v. Quebec (Education, Recreation and Sports),[68] the Supreme Court of Canada took a similar approach, suspending the effects of a declaration of invalidity a provision of the Charter of the French Language[69] for a period of one year to allow: “Quebec’s National Assembly to review the legislation”.[70].

[157]     What is appropriate in the present matter?

[158]     The Commission refused to suspend the effects of its declaration that the impugned paragraph was unconstitutional. It noted that the certification petition had been deposited in July 2008, more than twenty months before its decision.

[159]     Almost three more years have passed, and the legislator has not modified the paragraph in question. Nonetheless, the Court believes that it is appropriate to suspend the declaration of invalidity for a period of twelve months. One cannot reprove the legislator for its failure to consider amending legislation pending the result of the present proceedings.

[160]     In addition, the Commission itself recognized that there are measures, less restrictive than a total exclusion from the Code’s collective bargaining regime, which the legislator could consider to achieve its objectives of protecting the family farm and ensuring that Quebec’s territory is occupied.

[161]     On the other hand, the Court must be careful that the Union does not lose its rights in the event the legislator decides not to amend the impugned paragraph, or does so in a way, which allows the motion in certification to be considered by the Commission. Suspending the effects of the Commission’s decision, pending the action of the legislator is an appropriate way to accomplish this.

THE COSTS

[162]     The Court has concluded that the decision of the Commission on the unconstitutionality of paragraph 5 of section 21 of the Code is correct, as it is incompatible with the guarantee of freedom of association protected by section 2(d) of the Charter and article 3 of the Quebec Charter. The Court will grant the Union’s cross- demand in part and will declare the impugned paragraph to be invalid, but will dismiss it insofar as it seeks a declaration of invalidity based on section 15(1) of the Charter.

[163]     Given the mitigated result it is appropriate that each party pays its own costs.

[164]     FOR THESE REASONS, THE COURT:

[165]     DISMISSES the Motions in Judicial Review of the Attorney General of Quebec, and Johanne L’Écuyer and Pierre Locas;

[166]     GRANTS in part the cross-demand of the Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 501 (TUAC);

[167]     DECLARES the decision of Commission des relations du travail, rendered on April 16, 2010, declaring paragraph 5 of section 21 of the Quebec Labour Code to be unconstitutional and of no force or effect, as it is incompatible with the guarantee of freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms and article 3 of the Quebec Charter of Human Rights and Freedoms, to be correct;

[168]     DECLARES paragraph 5 of section 21 of the Quebec Labour Code to be unconstitutional and of no force or effect, as it is incompatible with the guarantee of freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms and article 3 of the Quebec Charter of Human Rights and Freedoms;

[169]     DECLARES that the infringement on the guarantee of freedom of association is not justified in accordance with the section 1 of the Canadian Charter of Rights and Freedoms and section 9.1 of the Quebec Charter of Human Rights and Freedoms;

[170]     DECLARES the decision of Commission des relations du travail, rendered on April 16, 2010, declaring that paragraph 5 of section 21 of the Quebec Labour Code does not breach section 15 of the Canadian Charter of Rights and Freedoms, to be correct;

[171]     SUSPENDS the declaration of constitutional invalidity and the effects of the decision of Commission des relations du travail, rendered on April 16, 2010, for a period of twelve months from the date of the present judgment;

[172]     THE WHOLE WITHOUT COSTS

		__________________________________ THOMAS M. DAVIS, J.S.C.
Me Karl Delwaide and Me Richard Martel
Fasken Martineau Du Moulin
Attorneys for the Petitioners and Mis en cause
Me Brigitte Ducas
Commission des relations du travail
Attorney for the Defendant
Me Pierre Grenier and Me Sibel Ataogul
Melançon, Marceau, Grenier & Sciortino
Attorneys for the defendants and mis en cause
Me Michel Deom and Me Dominique Legault
Bernard Roy & Associés (Justice-Québec)
Attorneys for the Petitioner and Intervenant
Dates of hearing :	November 24 and 25, 2011, June 4, 2012, September 13 and 14 2012.