Canada enshrined the Charter of Rights and Freedoms four years ago, and since then numerous court cases based on its sometimes ambiguous guarantees of individual liberty have preoccupied many lawyers and judges across the country. And last
week in Toronto, Ontario Supreme Court Justice John White listened to arguments in a well-funded charter challenge that, if successful, could drastically reduce the power of Canadian unions. The case, which union leaders have called the “labor trial of the century,” focuses on the right of union officials to subsidize political causes and parties with dues contributions. To end that practice Mervyn Lavigne, a drafting teacher from Haileybury in Northern Ontario, launched a suit against the 87,000-member Ontario Public Service Employees Union (OPSEU) last year. One reason: he objected to union donations going to striking British coal miners in 1984 without his consent. The 57-year-old community college teacher argues that compulsory dues should be used only for collective bargaining—unless individual employees consent to support other activities.
Lavigne has refused —legally —to join OPSEU, which represents faculty and support staff at the Haileybury School of Mines. But under the terms
of the collective agreement with the school he is entitled to all compensation and benefits that the union secures in bargaining. Lavigne pays a compulsory deduction of $5.15 per month under a formula which Supreme Court of Canada Justice Ivan
Rand devised in 1946. That landmark arbitration ruling, which grew out of a bitter labor dispute at the Ford Motor Company in Windsor, allows unions to collect dues from members and nonmembers alike (a process known as “checkoff”) and it is now a standard feature of most collective agreements in Canada. But Lavigne objects to OPSEU’s directing up to 18 cents of his dues payment each month to such umbrella groups as the Canadian Labour Congress (CLC). He argues that the allocations violate such charter rights as “freedom of association.”
Asserting those rights in courts could cost up to $500,000 if the case reaches the Supreme Court of Canada. But Lavigne himself will not have to pay because the National Citizens’ Coalition is supporting his cause. Indeed, the conservative, pro-business lobby group (founded in 1967 by wealthy London, Ont., insurance agent Colin Brown to oppose such policies as universal medicare in Canada) has already raised $300,000 for the court fight. And in the letters that it mailed
to raise money, the 30,000-member organization has characterized the action as an attack on “the heart of the left wing, not only in Ontario but in Canada as well.”
In recent years the organization has campaigned against the admission of Vietnamese refugees to Canada, official bilingualism, unemployment insurance and indexed pensions. And success in the Lavigne case would result in one of the lobby group’s most cherished goals: reducing labor’s support for the New Democratic Party. A clear victory in the case would not only weaken those links, declared coalition vice-president David Somerville, but would “limit the role of major union bodies and very substantially alter the way left-wing politics is practised in Canada.”
For their part, organized labor leaders say that they are cono cerned that a loss in the case g would cripple the union move8 ment. Said CLC president Denz nis McDermott (who last week e was named ambassador to Ire5 land): “The obvious effect Q would be to render the labor z movement absolutely impotent.” In support of that viewpoint, several affidavits before the court argue that in the past Canadian unions have made their greatest gains through political and social advocacy. Said University of Toronto labor historian Desmond Morton: “Canadians have historically expected unions to express themselves on a full range of concerns.”
At the same time, many labor law specialists and union leaders say they are alarmed to see such a crucial labor issue—one which they considered settled-before the courts again. Said Henry Glasbeek, a labor law professor at Osgoode Hall Law School in Toronto: “It is entirely fair to say that union rights have been imperilled every time the courts are involved. For that reason, in the last 50 years unions have been largely removed from the courts’ jurisdiction. The Charter has had the effect of reversing that trend.” Now, Justice White will have to decide if individual rights take precedence over one of the labor movement’s traditional sources of strength.
The story you want is part of the Maclean’s Archives. To access it, log in here or sign up for your free 30-day trial.
Experience anything and everything Maclean's has ever published — over 3,500 issues and 150,000 articles, images and advertisements — since 1905. Browse on your own, or explore our curated collections and timely recommendations.WATCH THIS VIDEO for highlights of everything the Maclean's Archives has to offer.