The Ontario Court of Appeal released its decision in Fraser v. Ontario (AG) yesterday. This was an appeal brought by the UFCW to the Agricultural Employees Protection Act, 2002. The central issues in the case was whether the legislation violates S. 2(d) and S. 15(1) of the Canadian Charter of Rights and Freedoms. The S. 2(d) challenge raised the issue of whether the legislation by failing to provide sufficient statutory protections to enable workers to exercise their freedom to organize and their right to bargain collectively violated 2(d). The equality challenge under s. 15 raised the issue of whether the legislation denied agricultural workers equal protections and equal benefit of the law based on their occupational status as agricultural workers.
The Court of Appeal found that the AEPA breached 2(d). More specifically the court concluded that "the AEPA substantially impairs the capacity of agricultural workers to meaningfully exercise their right to bargain collectively." The violation of 2(d) was not saved under s. 1 of the Charter. The court declared the AEPA constitutionally invalid but suspended the declaration of invalidity for 12 months in order to allow the government time to "determine the manner in which it wishes to statutorily protect the collective bargaining rights of agricultural workers." (Para 13)
On the s. 15 claim the court found that while the AEPA perpetuates and reinforces the pre-existing disadvantage of agricultural workers, it did not constitute a violation of section 15 because the distinction is not based on an enumerated or analogous ground. (see paras 109 - 114) It will be interesting to see if the government appeals the case.