Due Process, Collective Bargaining, and S. 2(D) of the Charter: A Comment on B.C. Health Services
Bibliographic record
Abstract
In its recent decision in B.C, Health Services, the Supreme Court of Canada took the monumental step of overruling its own precedents in the Labour Trilogy, by holding that the Charter guarantee of freedom of association does in fact protect a union's right to engage in collective bargaining. The author argues that, while the decision marks a new era for labour relations in Canada, the Court's methodology may have regressive consequences more generally for the interpretation of associational freedom under s. 2(d) of the Charter. She focuses on three aspects of this methodology. First, in constitutionalizing the right of access to a collective bargaining procedure free from "substantial" government interference (but not the outcomes of that procedure), the decision creates a model of due process which could downgrade the entitlement in s. 2(d) from a substantive to a procedural one. Second, while the imposition of a duty on employers to bargain in good faith may appear progressive, recent case law shows that positive rights and obligations can, ironically, be applied restrictively to narrow the scope of fundamental Charter freedoms. Third, by rejecting an abstract view of associational freedom, and favouring instead an approach that is heavily context-dependent, the Court interpreted s. 2(d) in a way which may have little relevance outside the labour relations setting, and which might be used to deny other types of claims. The author points out, however, that in B.C. Health Services the Court did not attempt to develop a new theory of entitlement for the guarantee. For this reason, she urges that the decision be read as one that is limited to the status of collective bargaining under the Charter, and that the Court has left to another day the task of redefining the conceptual foundation of s. 2(d). The paper closes by outlining several issues which must be addressed in any reconsideration of the guarantee.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.032 | 0.045 |
| Meta-epidemiology (narrow) | 0.002 | 0.002 |
| Meta-epidemiology (broad) | 0.003 | 0.006 |
| Bibliometrics | 0.002 | 0.003 |
| Science and technology studies | 0.033 | 0.037 |
| Scholarly communication | 0.018 | 0.007 |
| Open science | 0.012 | 0.006 |
| Research integrity | 0.126 | 0.099 |
| Insufficient payload (model declined to judge) | 0.004 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".