Section 2(d) – Freedom of association
Department of Justice
(ii) Freedom from compelled association Section 2(d) encompasses what has been called a “negative aspect”, a “freedom not to associate” or a “freedom from compelled (or ‘forced’) association”. However, section 2(d) is not a constitutional right to isolation. It does not protect against all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community (Bernard v. Canada, [2014] 1 SCR 227 at paragraph 38). Some forms of association are an unavoidable aspect of life (e.g., family, work, association with the government and its programs and policies). Compelled association in the form of legal obligations arising from these unavoidable types of associations does not in and of itself offend section 2(d) (Lavigne, supra at 320-21; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209 (“ Advance Cutting”), at paragraphs 19, 194, 223, 232).
The Court has thus determined that there is a threshold issue in determining whether there is an infringement of the freedom from compelled association. Courts must consider whether it is appropriate for the legislature to require persons with similar interests in a particular area to become part of a single group to foster those interests (for example, to require employees in a particular workplace to pay dues to a union). In other words, one must first be satisfied that the compelled combining of efforts towards a common end is required to further the collective social welfare. Where such a combining of efforts is required, and where the government is acting with respect to individuals whose association is already “compelled by the facts of life”, the individual’s freedom of association will not be limited unless there is a danger to a specific liberty interest (described below). This approach only applies, however, so long as the association is acting in furtherance of the cause which justified its creation (Lavigne, supra at 328-29; Advance Cutting, supra at paragraphs 196, 285).
Forced association threatens an identified liberty interest when there is: imposition of a form of ideological conformity on the claimant; (Advance Cutting, supra at paragraphs 19, 195, 196, 220; Lavigne, supra at pages 328-29); government establishment of, or support for, particular political causes; impairment of individual freedom to join or associate with causes of his or her choosing; and personal identification of an individual with causes which he or she does not support (Lavigne, supra at pages 328-29).
Freedom From Association
TD Canada Trust in the City of Greater Sudbury, Ontario, 2006 CIRB 363 (CanLII)
81 In response to the employer’s constitutional objection in that case, the Board thoroughly reviewed the Charter principles at issue and the past jurisprudence of the Board and the courts, and concluded that it would not contravene section 2(d) of the Charter if it were to exercise its discretion to order that the former Clearnet and QTM employees be swept into the existing single bargaining unit without holding a vote. It adopted the principle enunciated by the Supreme Court of Canada in R. v. Advanced Cutting & Coring Ltd., 2001 SCC 70 (CanLII), [2001] 3 S.C.R. 209, and found that the mere requirement to join a union must be viewed as insufficiently burdensome to breach the negative freedom of association embedded in section 2(d) of the Charter.
82 This decision of the Board was upheld by the Federal Court of Appeal in Télé-Mobile Co. v. Telecommunications Workers Union, 2004 FCA 438 (CanLII), [2005] 2 F.C.R. 727; (2004), 248 D.L.R. (4th) 25; 328 N.R. 336; and [2005] CLLC 220‑043 (F.C.A., no. A-327-04). The Federal Court of Appeal dealt with the issue in short order, recognizing that the facts of the TELUS Communications Inc. et al., supra, decision were distinguishable from those in R. v. Advanced Cutting & Coring Ltd., supra, in that, unlike the situation in R. v. Advanced Cutting & Coring Ltd., supra, the Rand formula applied in TELUS Communications Inc. et al., supra, such that the obligation in question was even less onerous. In R. v. Advanced Cutting & Coring Ltd., supra, the employees were statutorily required to join one of the designated unions, whereas under the Code, the requirement is only to be included within a bargaining unit and to pay union dues. The Federal Court of Appeal stated that mere inclusion in a bargaining unit and the compulsory payment of dues do not engage section 2(d), even though members of the bargaining unit who decide not to belong to the union thereby exclude themselves from having any say in the manner in which it represents them. It cited with approval the Supreme Court of Canada decision in Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, and the more recent OLRB decision in Metroland Printing, Publishing and Distributing Ltd., [2003] OLRB Rep. January/February 104.
