Constitutional right to collective bargaining has its limits: Ontario Agriculture, Food and Rural Affairs Appeal Tribunal

Canada Publication July 9, 2020

In Phase Two of the decision United Food and Commercial Workers International Union v. MedReleaf Corp., the Agriculture, Food and Rural Affairs Appeal Tribunal (the tribunal) confirmed that sections 2(1) and 5 of the Agricultural Employees Protection Act, 2002 (the AEPA) do not violate the associational rights of MedReleaf Corp. employees under section 2(d) of the Canadian Charter of Rights and Freedoms (Charter).1

Labour relations in most of the Ontario private sector are governed by the Labour Relations Act (the LRA). The LRA model allows employees to organize a bargaining unit represented by a single trade union selected by an employee majority vote. This is often referred to as the “Wagner Act model.” The union is the exclusive bargaining agent. The LRA further provides rights relating to strikes by employees and lockouts by employers. Employees in the agricultural sector are excluded from the LRA, and are instead governed under the AEPA under which employees in a bargaining unit can be represented by different unions. 

This case involves an unfair labour practices complaint brought by the union for MedReleaf employees (the United Food Commercial Workers International Union, the UFCW), and four individual employees against MedReleaf under the AEPA. The UFCW further claimed that the collective bargaining regime under sections 2(1) and 5 of the AEPA violated their associational rights guaranteed by section 2(d) of the Charter

The tribunal’s findings

The tribunal bifurcated the two claims and dismissed the unfair labour practices complaint in Phase One of its decision. For a discussion of Phase One of the decision, please see here

In Phase Two of the decision, the tribunal dismissed the Charter challenge and confirmed the constitutional validity of the collective bargaining regime under the AEPA.

The tribunal’s reasoning

Upon reviewing its own prior jurisprudence and that of the Supreme Court of Canada, the tribunal found that although section 2(d) of the Charter guarantees some form of collective bargaining and a right to withdraw services, it does not extend to a guarantee of the Wagner Act model of collective bargaining or an express right to strike:


[92] The [jurisprudence] confirms a constitutional right to a process for some form of collective bargaining (but not necessarily a Wagner Act model) and a right to withdraw services (but not necessarily a strike), each adjunct animating the Section 2(d) Charter right of freedom of association. However, that authority does not mean that every labour relations statute that does not currently contain a statutory right to a Wagner Act model of collective bargaining or to strike is rendered unconstitutional as violating the right of freedom of association under Section 2(d) of the Charter. Rather, that authority requires that we “read-in” where appropriate those constitutionally recognized rights in any such labour relations legislation.


The tribunal found section 5 of the AEPA provided for a form of collective bargaining, albeit not the Wagner model specifically. Furthermore, while the AEPA is silent on the right to strike, it does not expressly ban strikes, and therefore is not unconstitutional. MedReleaf employees had the freedom to strike to exert economic pressure in collective bargaining. The legal authorities had not interpreted the Charter as requiring labour relations regimes to include statutory job protections for employees on strike.

An important factor in the tribunal’s decision was the inference drawn from the evidence that MedReleaf employees had significant economic leverage through threatening to strike, due to the sensitive nature of the cannabis crop to various environmental factors and the limited availability of trained replacement employees. The tribunal also recognized that the AEPA’s objective is to create a flexible labour relations regime to respond to the unique circumstances of various agricultural sectors. Furthermore, the UFCW had never attempted to engage the AEPA regime prior to bringing the complaint. Rather, it flatly rejected the AEPA framework and a “singular focus” on the Wagner Act model.

The tribunal ultimately held section 5(1) of the AEPA not in breach of section 2(d) of the Charter because it provides a meaningful form of collective bargaining. Specifically, the tribunal found that the regime gives employees choice and independence of representation, incorporates the duty of good faith in bargaining, and provides employees with sufficient power in dealing with the employer or influencing employment conditions.

Key take-aways

The tribunal’s decision as it stands has significant implications for labour relations in the agricultural industry. The decision upheld the constitutional validity of the collective bargaining regime under the AEPA. In light of the unique circumstances of the various sectors in the agriculture industry, the tribunal confirms that associational rights guaranteed by section 2(d) of the Charter do not require the provision of an LRA-like exclusive bargaining agent model, an express right to strike (so long as there is no ban on strikes), or statutory job protection for employees on strike. 

Lastly, it should be noted that the UFCW has already advised that it will be seeking a judicial review of both Phase 1 and Phase 2 decisions. It will therefore be interesting to see how courts interpret the scope of section 2(d) of the Charter as applied to the collective bargaining regime under the AEPA

The authors wish to thank law student Nour Abbas for her help in preparing this legal update. 


1   UFCW v MedReleaf Phase 2, 2020 ONAFRAAT 8.

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