Freedom of Association: SCC Confirms that the Same Test Applies to Positive and Negative Rights Claims

On April 19, 2024, the Supreme Court of Canada rendered its decision in the Société des casinos du Québec v. Association des cadres de la Société des casinos de Québec matter (2024 SCC 13). The SCC was asked to examine a provision of Québec’s Code du travail that excludes managers from the definition of “employee”. The SCC had to decide whether this exclusion violates the Charter-protected right of freedom of association.

One of the key issues of this appeal was whether workers claiming that their associational rights have been infringed by the State have to meet a separate and higher test when they are seeking positive state intervention instead of negative protection against State interference. CCLA’s arguments before the SCC highlighted how illusory the distinction between “positive rights” and “negative rights” is in collective bargaining relationships (and in the law more generally), given that the State is always making deliberate choices when it prescribes what is required, prohibited, or permitted by law.

The majority of the SCC confirmed that there is only one test for evaluating a freedom of association claim, regardless of whether such claim is based on alleged “positive” or “negative” rights. The applicable test, which was developed in Dunmore v. Ontario (Attorney General) (2001 SCC 94), requires that courts examine (1) whether the activity falls within the scope of the Charter’s freedom of association guarantee, and (2) whether the government action interferes with Charter-protected activity in purpose or effect.

Applying the first step of the test to the facts at hand, the majority of the SCC found that the Association’s claim did involve activities protected under s. 2(d) of the Charter, such as the right to form an association with sufficient independence from the employer, to make collective representations to the employer, and to have those representations considered in good faith.

However, the SCC held that the second step of the test was not met, since the purpose of the legislative exclusion was not to interfere with managers’ associational rights, but rather (1) to distinguish between management and operations in organizational hierarchies, (2) to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities, and (3) to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees. The SCC also found that the Association had failed to show that the effect of the legislative exclusion was to substantially interfere with its members’ rights to meaningful collective bargaining. That is because the Association’s members have been able to associate and collectively bargain with their employer despite the legislative exclusion.

CCLA is pleased to see that the SCC re-affirmed that claimants who are excluded from collective bargaining regimes do not bear a separate and higher legal onus. However, the SCC’s decision is disappointing in practice, since it suggests that it will still be hard for such claimants to establish a breach of their associational rights.

CCLA is grateful for the excellent pro bono work of Danielle Glatt and Catherine Fan (Paliare Roland) in this file.