CAW LAW REPORT

This special issue of the CAW Law Report is devoted to an analysis of the recent Supreme Court of Canada decision entitled Francis Lavigne v. The Ontario Public Service Employees Union, The Ontario Council of Regents for Colleges of Applied Arts and Technology and the Attorney General for Ontario et. al. (Decision rendered, June 27, 1991).

It is fair to say that the "Lavigne" decision represents one of the most important, if not the most important, legal victories under the Charter of Rights and Freedoms with respect to trade unions in Canada to date. Interestingly, however, it is a comment on the nature of the Charter of Rights and Freedoms that a decision upholding the Rand Formula (something we have historically found to be a fundamental principle of union security and solidarity), is seen as a major victory. Arguably, the issue of the legality of the Rand Formula should never have been put before a court of law, and we should never have had to face the risk of losing any part of the Rand Formula system.

The facts of the Lavigne case are fairly straight forward. Francis "Merv" Lavigne has been, since 1974, a teacher at the Haileybury (Ontario) School of Mines. The Haileybury School is a College of Applied Arts and Technology. The Colleges Collective Bargaining Act, R.S.O. 1980 c. 74 designates a special body called the Ontario Council of Regents for Colleges of Applies Arts and Technology ("Council of Regents") as the bargaining agent for college employers in the Province of Ontario. The Council of Regents itself is established by the Ministry of Colleges and Universities Act, R.S.O. 1980, c.272. According to the latter Act, the Council of Regents is responsible for assisting the Provincial Minister of Colleges and Universities in the planning and establishment of programs for colleges.

From time to time, the Council of Regents has signed successive collective agreements with the Ontario Public Service Employees Union ("OPSEU"), the collective bargaining agent which represents community college teachers. One article of the collective agreement between OPSEU and the Council of Regents provides for mandatory dues check off, commonly known as the Rand Formula. Furthermore, section 53 of the Colleges Collective Bargaining Act specifically gave the Council of Regents the authority, if it so desired to agree to the Rand Formula when it signed a contract with the union.

Lavigne filed an application in the Supreme Court of Ontario seeking a declaration that the provisions of the Colleges Collective Bargaining Act and the collective agreement which support the Rand Formula were unconstitutional. Specifically, Lavigne claimed that the effect of the Rand Formula was to violate his freedom of association and freedom of expression as guaranteed by the Charter. Lavigne sought, as a remedy, a court order which would permit him to refuse to pay any part of his union dues which would be ultimately used for purposes other than strict collective bargaining matters. In other words, Lavigne challenged certain expenditures made by his union, OPSEU, such as financial contributions to the NDP, disarmament campaigns, Arthur Scargill and United Kingdom coal miners etc.

Lavigne had mixed success in the courts below the Supreme Court of Canada. Mr. Justice White of the Supreme Court of Ontario essentially agreed with Lavigne that his freedom of association had been infringed as a consequence of the Rand Formula system of compulsory dues payment. The Ontario Court of Appeal threw out the judgment of Mr. Justice White. The Ontario Court of Appeal held that the use of Lavigne's (and other workers) union dues by OPSEU was a private activity carried on by a private organization (OPSEU) and was therefore beyond the reach of the Charter. The Ontario Court of Appeal found there was no "governmental action" which would bring the Charter into play.

The crucial issues before the Supreme Court of Canada were as follows:

1. Did the Charter of Rights and Freedoms apply to the circumstances of Lavigne's case.

2. If so, does the requirement that Lavigne pay union dues to OPSEU infringe or deny the rights and freedoms guaranteed by section 2(b) of the Charter, that is, the freedom of thought, belief, opinion and expression?

3. And, if the answer to issue #1 is in the affirmative, does the requirement that Lavigne pay union dues to OPSEU infringe or deny the rights and freedoms guaranteed by section 2(d) of the Charter, namely, freedom of association?

4. If the answer to either issue numbers 2 or 3 is in the affirmative, is the requirement that Lavigne pay sums equivalent to union dues to OPSEU justified in whole or in part by section 1 of the Charter and, therefore, consistent with the Constitution?

All of the justices of the Supreme Court of Canada agreed that the Charter of Rights and Freedoms applied to the facts presented by Lavigne's case. Mr. Justice Laforet decided that it was not correct to characterize Lavigne's challenge as one confined to the constitutionality of the union's expenditure decisions. Rather, Mr. Justice Laforet focused on the Council of Regents and the part, if any, it played in agreeing to and administering the Rand Formula. It was decided that in order for the Charter to apply, a "governmental actor" is required. Mr. Justice Laforet found that the Council of Regents was, in fact and in law, a governmental actor. He decided that the Ontario government, through the Minister of Education, had a power of routine and regular control over the activities of the Council of Regents including its collective bargaining activities. According to Mr. Justice Laforet, "the Council of Regents is simply part of the fabric of government". He continued his analysis by posing the next question. Having determined that the Council of Regents is a governmental actor, was the Council of Regents agreement to include the Rand Formula in the collective agreement with OPSEU "government conduct" which could be regulated by the Charter? The answer to this question, according to Mr. Justice Laforet is in the affirmative. The reasons for his answer in the affirmative were taken from an earlier Supreme Court of Canada decision regarding mandatory retirement. In that case, the Court held:

"For reasons discussed in McKinney v. University of Guelph, I am of the view that the collective agreement is law. It was entered into by a government agency pursuant to powers granted to that agency by statute in furtherance of government policy. The fact that the collective agreement was agreed to by the appellant association does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age."

Mr. Justice Laforet had this to say about article 12 of OPSEU collective agreement which dealt with the Rand Formula:

"Article 12 represents an undertaking on behalf of the Council of Regents as agent for the community colleges of Ontario to deduct union dues from every employee within the bargaining unit represented by the union. It is the performance of this undertaking by the government entities which the Council represents in collective bargaining, the community colleges, that forces persons to contribute to the union's coffers. It would seem to follow that article 12 is as much the result of the Council's undertaking to deduct union dues at source, as it is of the desire of the union to have such deduction made on its behalf. It would also follow that, even if the inclusion of article 12 in the collective agreement was not the result of government action, the performance of the undertaking which its contains by the administration of the community college for which Lavigne works must surely qualify as government action."

It should be noted that three others justices of the Supreme Court of Canada adopted Mr. Justice Laforet's reasoning in this regard.

Madam Justice Wilson and Madam Justice L'Heureux-Dube also came to the same conclusion that the Charter applied to the circumstances of Lavigne's case, albeit via a somewhat different analysis. Madam Justice Wilson had this to say about how and when the Charter applies to a given dispute:

"What then is to be gleaned from the case law to date? It seems to me that the decisions of the court establish that there are two ways in which the Charter may be invoked. First, the Charter applies to acts of government. What constitutes government for this purpose includes not only the legislative, executive or administrative branches of government in the sense contemplated by McIntyre J. in Dolphin Delivery, but also other non traditional government bodies. In other words, the Charter applies to government entities broadly construed. Second, an activity will be subject to Charter review, if, even although the act was not performed by government, it was subject to such significant government control that it may effectively be considered an act of government for Charter purposes."

The Court then considered the submission made by Lavigne that the Council of Regents, by compelling Lavigne to contribute to the union, violated his constitutionally protected freedoms of association and expression.

In the course of this appeal, the Supreme Court of Canada had occasion to analyze the issue whether the freedom of association guaranteed by section 2(d) of the Charter included the freedom of non-association. The Court split on this fundamental issue. Three Justices found that the freedom to associate includes the freedom not to associate. Three Justices clearly disagreed with that proposition, and the seventh Judge decided that issue did not have to be determined in order to answer Lavigne's appeal.

However, in the final analysis, it is important to note that three Justices decided that Lavigne's freedom of association had in law been violated because, in essence, compelling Lavigne to pay union dues was, in effect, compelling Lavigne to associate with an organization that he choose not to associate with. The judgment that Lavigne's freedom of association had in fact be infringed was written by Mr. Justice Laforet. His decision regarding the scope of freedom of association is remarkable in the breadth of its political, rather than its legal, analysis. In response to the question of whether freedom of association includes the constitutionally protected freedom not to associate, Mr. Justice Laforet wrote:

"In my view the answer is clearly yes. Forced association will stifle the individuals potential for self fulfilment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships convictions and free choice. Instead, it can expect that such groups and organizations will, overall, have a negative effect on the development of the large community. One need only think of the history of social stagnation in Eastern Europe and of the role played in its development and preservation by officially established "free" trade unions, peace movements and cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of the freedom of the individual to refrain from association is a necessary counter part of meaningful association in keeping with democratic ideals... It is clear that a conception of freedom of association that did not include freedom from forced association would not truly be "freedom" within the meaning of the Charter... Governmental tyranny can manifest itself not only in constraints on association, but enforced association. There is no logical inconsistency in recognizing this reality."

Mr. Justice Laforet next addressed the issue whether forced payment of union dues (the Rand Formula) impaired Lavigne's freedom not to associate. Mr. Justice Laforet found as follows:

"I think it is fair to construe payment of dues which are used to further the objects of the union as "maintaining" or "participating in" this particular association. In fact, OPSEU forcefully argued that the mandatory contribution of union dues under an agency shop provision is an essential component of the union's right to "maintain" the association under section 2(d) of the Charter."

It is at this point that Mr. Justice Laforet makes a crucial finding. Lavigne argued that he would accept the obligatory payment of union dues, if his dues were only used for collective bargaining purposes, that is, the negotiation and administration of the collective agreement at his workplace. Lavigne's position was that any cause unrelated to collective bargaining ought not to be supported by his dues. Mr. Justice Laforet agreed with this argument. Mr. Justice Laforet found:

"When, however, the union purports to express itself in respect to matters reflecting aspects of Lavigne's identity and membership in the community that go beyond the bargaining unit and its immediate concerns, his claim to the protection of the Charter cannot as easily be dismissed. In regard to these broader matters, his claim is not to absolute isolation but to be free to make his own choices, unfettered by the opinion of those he works with, as to what associations, if any, he will be associated with outside the workplace... Consistent with what I have already stated, I would say that this characterization of Lavigne's claim is more clearly defensible as it relates to his association with the union when it is engaged in representing Lavigne and his fellow workers in collective bargaining, grievance arbitration and the like. But as noted, it is not as clear as regards to the extent to which Lavigne's claim relates to his association with the union in its capacity as an organization which speaks on matters of local, national and world politics. The essential question is whether democracy in the workplace has been kept within its proper or constitutionally permissable sphere. With respect to democratic institutions other than the government, and to unions in particular, the United States Supreme Court has attempted to draw the line between those actions designed to promote the cause which justified bringing the group together and those actions which fall outside that sphere... In my view, it is more consistent with the generous approach to be applied to the interpretation of rights under the Charter to hold that the freedom of association of an individual member of a bargaining unit will be violated when he/she is compelled to contribute to causes, ideological or otherwise that are beyond the immediate concerns of the bargaining unit. As I stated previously, this distinction derives logically from the fact that the reason the forced association is permissible is because the combining of efforts of a particular group of individuals with similar interests in a particular area is required to further the collective good. When that association extends into areas outside the realm of common interest that justified its creation, it interferes with the individuals right to refrain from association."

Evidently, Laforet has made a finding that workers in a bargaining unit share similar interests when it comes to collective bargaining, but do not share similar interests when it comes to political action. Mr. Justice Laforet has swallowed this artificial and unreasonable distinction between collective bargaining and non-collective bargaining purposes. Mr. Justice Laforet made an explicit declaration that expenditures relating to political issues such as the disarmament movement and the NDP are not sufficiently related to the concerns of Lavigne's bargaining unit or the unions functions as exclusive bargaining agent to be supportable under the umbrella of freedom of association.

If, therefore, Mr. Justice Laforet accepted a fundamental submission made by Lavigne regarding the use of union dues for "political" activities how is it that he eventually found that the Rand Formula was lawful and could continue without being struck down?

The answer to that question is found near the end of Mr. Justice Laforet's judgment where he states that the Rand Formula constitutes a justifiable limitation upon Lavigne's freedom of association. Why is the Rand Formula a reasonable and justifiable limit upon the freedom of association? Mr. Justice Laforet states as follows:

"Compelling contributions by all represented by the union, all who benefit from the union's attempt to push the general political, social and economic environment in a direction favourable to unions and their members, provides the union with a stable financial base needed to underwrite political, economic and social activism. The fact that no restriction is put on the manner in which contributed money is expended leaves the decision as to what is and what is not in the interests of the union and its members in the hands of the union membership. It, therefore, clearly has the affect of promoting democratic unionism... If one could opt out, there would be less incentive to become a member, since, presumably, one of the present advantages of membership is that one gets a vote on how one's money is spent. This would obviously be less attractive if one could unilaterally prevent one's money from being spent on matters of which one disapproves. I would add that the ability to opt out would undermine the spirit of solidarity which is so important to the emotional and symbolic underpinnings of unionism."

Mr. Justice Laforet spent little time dealing with Lavigne's alternative submission that the Rand Formula constituted a violation of his freedom of expression. Mr. Justice Laforet stated that "activity is expressive if it attempts to convey meaning". He found that Lavigne's contribution to the union, in the form of union dues, cannot be said to be an attempt to convey meaning. Therefore, the Rand Formula did not constitute a violation of Lavigne's freedom of expression.

Madam Justice Wilson took a different view of the scope of the "freedom of association".

She decided that it did not include the freedom "not to associate". Two other Justices of the Supreme Court of Canada, namely, Cory and L'Heureux-Dube agreed with her. Madam Justice Wilson wrote:

"To my mind, the appellant has not advanced sufficiently compelling reasons to justify extending freedom of association, having regard to its purpose, to include a freedom not to associate. In the words of Dickson J. in Big M. Drug Mart, this would be "to over shoot the actual purpose of the right or freedom in question". The purpose behind section 2(d) has already been fully and fairly discussed and there seems to me to be good reason for affirming the interpretation given to the provision. For instance, Mr. Goudge argued that to include a negative freedom of association within the compass of section 2(d) would set the scene for contests between the positive associational rights of union members and the negative associational rights of non members. To construe the section in this way would place the court in the impossible position of having to choose whose section 2(d) rights should prevail. I agree with counsel for the Respondent that an interpretation leading to such a result should be avoided if at all possible...

Having found that section 2(d) includes only the positive freedom to associate, the question remains whether Mr. Lavigne's freedom of association has been violated in this case. The Appellant has not been prevented from forming or joining associations of his choosing. It is my view, therefore, that the Appellants right to freedom of association has not been infringed and this ground of appeal must accordingly fail.

Madam Justice Wilson also rejected Lavigne's claim that his constitutionally protected freedom of expression has been infringed by operation of the Rand Formula.

She wrote:

"I return, therefore, to the question whether the mandatory payment of dues infringes section 2(b), regarding the freedom of expression. To my mind, compelled financial support does not necessarily violate freedom of expression. For example, all members of the community are compelled to pay taxes on pain of legal penalty. It seems axiomatic that the payment of taxes does not signify in the eyes of others support for the uses to which tax money is put or support for the political party in power, or, indeed, support for the idea of government at all. The constitutionality of compelled payments has in fact be recently litigated. In MacKay v. Manitoba [1989] 2 S.C.R. 357, this court rejected a claim that the Election Finances Act, S.M. 1982-83-84, chapter 45, infringed tax payers freedom of expression... In my view, the present case is analogous to MacKay. The fact that the Appellant is obliged to pay dues pursuant to the agency shop clause in the collective agreement does not inhibit him in any meaningful way from expressing a contrary view as to the merits of the causes supported by the union. He is free to speak his mind as and when he wishes. Nor does being governed by the Rand Formula have such an effect. It is a built in feature of the Rand Formula that union activities represent only the expression of the union as a representative of the majority of employees. It is not the voice of one and all in the bargaining unit. I find therefore that the appellant section 2(b) right has not been infringed."

Madam Justice McLachlin wrote her own judgement. She did not decide clearly whether or not the constitutional freedom to associate includes a freedom not to associate. However, she did find that if the freedom to associate includes the freedom not to associate, it still could not operate to strike down the Rand Formula system. Specifically, Madam Justice McLachlin wrote:

"In my view, freedom from compelled associated, whatever its ambit, could not extend to the payments here at issue. Freedom not to associate, like freedom to associate, must be based on the value of individual self-actualization through relations with others. The justification for a right not to associate would appear to be the individuals interests in being free from enforced association with ideas and values to which he/she does not voluntarily subscribe. For the purposes of this case, I shall refer to this as the interest and freedom from coerced ideological conformity. It follows from this definition that negative associational activity falling under section 2(d) is not to be determined by the type of the coerced activity impugned (ie. mandatory payments), but by whether the activity associates the individual with ideas and value to which he/she does not voluntarily subscribe... Does the requirement that Lavigne make payments to the union, which the union may thereafter spend in part in support of causes which Lavigne does not support, fall within interest? In my view it does not. The test, is set out above, is whether the payments can reasonably be regarded as associating the individual with ideas and values to which the individual does not voluntarily subscribe. The payments here at issue do not meet this test because under the Rand Formula there is no link between the mandatory payment and conformity with the ideas and values to which Lavigne objects."

Since the Supreme Court of Canada is evenly split regarding the issue whether the persons freedom to associate includes a persons freedom not to associate, it is difficult to assess the long term impact of this judgment. However, Mr. Justice Laforet's analysis could have a long term adverse impact on the Canadian trade union movement if it is eventually adopted by a majority of the Supreme Court of Canada. Mr. Justice Laforet's analysis gives some support to those persons who wish to damage worker solidarity once a decision based on majority support within a bargaining unit or union is taken. The scope of a persons so called "freedom not to associate" with a collective bargaining agent could be wide ranging, affecting possible anti-scab laws, laws abolishing petitions in organizing campaigns, and certainly laws permitting obligatory membership in a union or the closed shop system etc.

These laws could be saved by operation of section 1 of the Charter if these challenges are brought and argued in court. However, one consequence of the Lavigne case will certainly be that more complicated litigation will be brought by employers and/or dissident workers to determine exactly how far they can stretch the so called right "not to associate". While the Canadian trade union movement scored an important victory in this particular battle over the Rand Formula, the legal war regarding the Charter is far from over. The last interesting point about this Lavigne decision is that all seven judges agreed that Lavigne should pay the legal costs of OPSEU, the CLC, the OFL, and the National Union of Provincial Government Employees Union. This order regarding costs included the costs of the original application and the costs incurred before the Ontario Court of Appeal as well as the costs associated with the appeal to the Supreme Court of Canada. Overall, Lavigne's efforts cost him over $1,000,000. This bill, of course, will be paid by the National Citizens Coalition. The issue of costs is a difficult one. On the one hand, there is a concern that future individual citizens who seek to challenge the constitutionality of certain laws will be dissuaded from doing so because of the possible legal costs impact. On the other hand, it is simply unacceptable that trade unions should have to pay extraordinary sums of money to defend basic principles of trade unionism such as the Rand Formula. In the final analysis I believe the court took a very practical and pragmatic view of the problem and decided that, in reality, Lavigne was not on the hook for the legal costs in question. Rather, the court realistically understood that Lavigne's costs were being underwritten by the National Citizens Coalition; and in these circumstances, the court was prepared to make a very substantial order against Lavigne regarding costs. One hopes that the court will take a similar pragmatic and realistic view of the issue in the future.

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