 My name is Michael Deturbin. I'm the associate dean of the Shulence School of Law. And I have the pleasure of welcoming everyone to the second Innis Christi symposium in Labor and Employment Law. Of course, I'd like to extend a very special welcome to Innis's family who is here today. Let me begin with the subject of the symposium, Professor Innis Christi. Innis was born and raised in Nova Scotia. He started his academic career at Queen's University in 1964. And in 1971, he returned to Nova Scotia and took up the post, thankfully for us, at the Dalhousie Law School, where he taught full-time until 2003 and then part-time until 2007. He also served as our dean from 1985 to 1991. Innis's teaching interests included labor and employment law, municipal law, administrative law, commercial law, professional ethics, but he really was a giant in the labor law field. He was a leading role in law. He had a leading role in law reform. For example, he was engaged in the Woods Task Force on Labor Relations in Canada in 1967. He drafted the Nova Scotia Trade Union Act in 1973 with former dean Reed and the Nova Scotia Labor Standards Code in 1972. He served in the 1970s as a member of the Canadian Anti-Inflation Appeal Tribunal, was counsel to the Nova Scotia Labor Standards Tribunal, and was chair of the Nova Scotia Labor Relations Board. In addition, Innis was deputy minister in the Nova Scotia Department of Labor and served as a member and chair of the Nova Scotia Workers Conversation Board. Innis was dean during my years at the law school. And I guess that's how I remember him best. He shepherded the school through the aftermath of the 1985 fire that destroyed, of course, much of our library. But Innis demonstrated that a great school is far more than just bricks and mortar. And he always insisted that we, the students and graduates of this law school, were the identity of the law. And he was genuinely interested in our careers. And if you'll permit me, just one small reminiscence of Innis, after I graduated, I headed to Toronto, came back, and a couple of years later, I got a call from Innis inviting me to come to dinner at his place. And he was surprised to know that I was back in town. And he wanted to catch up and see how things were going. And we had a lovely dinner. And my wife and I, with John and Innis, at their place over on Colburn Road. And it's this day, I'm not quite sure why he extended that invitation. But I think it is indicative of Innis' popularness and generosity towards his former students, because he really genuinely was interested in our careers. Innis Christi Symposium in Labor and Employment Law honors his life and his work. The gift that provides support for this symposium was initiated by the firm Pink Larkin. And many thanks to them and to everybody who subsequently contributed to ensure that we have such a substantive and rich way of continuing to honor Professor Christi's contributions. And I'll extend a final thanks to Cruz Archibald, who took on the task of chairing the committee that brought our eminent speaker to be with us here today. And now we'll call upon Professor Archibald to introduce Professor Brian Lajel. It's a great pleasure for me to introduce my old friend, or maybe I should say dear friend, not global, Brian Lajel. And I think it's important for me to say something substantial about Brian's career, so that you just don't think that the invitation to Brian was simply a ladder of cronyism. But we have with us an extraordinary thinker in the area of labor law and employment law, and somebody who has a global reputation. And it's a wonderful thing that Brian comes from Truro, Nova Scotia, and that his brother and his sister-in-law are here, as well as his wife, Cindy, who also comes from Truro. And Brian went to Acadia University in the late 60s where you will be able to tell, probably, that he studied a philosophy. He then came to Dalhousie Law School and graduated with that illustrious class of 1975, almost as illustrious as the previous years for any class, but that's another issue. And from that class, there graduated a number of labor lawyers who have gone on to really be leaders in the profession. And of course, they were under the mentorship of Venice Christie, which was a very demanding, mentorship at the time. Venice had just come back to the law school, had drafted this new legislation, and we were all enthralled by the energy and capacity and good humor and yet demanding kind of things that he got out of the students. And Brian, of course, was one of them. After going to Oxford, where he continued to study in the area of living employment law, Brian came back here to teach in 1978. And we were lucky to have him on faculty until 1983, I think it was, when he was drawn away to the University of Toronto, where he's been ever since. And Brian began to make his mark early in his academic career, where he wrote this famous article about labor law being a subset of employment law and began thinking about a kind of unified field of labor market regulation that Innis had obviously instilled the idea through his stewardship. And Brian brought it to fruition. And it became the kind of conceptual way that the National Labor Law Casebook was organized. And we went out with that casebook in its eighth edition. And it's going strong. And Brian is now one of the key leaders in that exercise. So he's continuing to have his impact on students across the country through that. He's also, as you were just saying, that he enjoys still being a labor arbitrator. And how he does this, I don't know, because he has been an active dean and interim dean at the University of Toronto for several years. He's run their graduate program. He's been an advisor to the Canadian government and provincial governments in matters of labor relations. He's been writing out the storm of late. And some of the titles you might be interested in, core labor rights, my favorite one actually, is new platforms and new paradigms for labor law, which doesn't include that. I don't want to include that in a formal biography that you sent along. But it's one of my favorites. But there are so, Brian is not only interested in international development and working with the international labor law organization, which he's done and represented Canada in delegations there, but has taken, since the BC Health Services case, an interest in constitutional law and labor law and writing things like, is there a constitutional right to strike in Canada? Why are Canadian judges drafting labor codes and constitutionalizing the Wagger Act? The idea in his view, although not in the view of some others. So there's an interesting controversy going on at the moment. But he's been writing about core labor standards at the international level. He's been doing a whole lot of things that are important. He's just edited a book that has just arrived in our library called The Idea of Labor Law, which he edited with a fellow by the name of Guy Davidoff. And it's like a previous book that Brian has edited, brings together the foremost labor law and employment law thinkers around the world. So Brian's playing in a national and international stage, which is of great significance. Brian is the second Innis-Kristi visiting lecturer. The Harry Arthur's last year, participated in symposium, as you will recall. And Brian, this year, is the first visiting Innis-Kristi professor to give a course to students. So he's been giving us a short course to students. I've been attending and learning a whole lot. We've been working hard two hours a day. And it's been great fun. And the medical students are here. And so you don't want to see me anymore. Thank you, Brian, for coming here. And we're going to hear about why the freedoms and rights distinction is important to labor lawyers. And I've got to say, from what we've been discussing in Brian's class, it's important to all of us, whether we're labor law specialists or not. So I'm really excited to be able to answer that. Thank you very much, Bruce, for that excessively kind introduction. Let me begin by thanking Dean Brooks and the faculty for sending to me this wonderfully meaningful invitation to come back home to doubt to give this lecture in Innis's name. Let me say thanks, too, to the faculty and staff who've made my stay here both easy and warm. Thanks to Bruce for being a perfect host. Thanks to the members of my seminar, which Bruce just referred to, for giving me a lot of rope and daring to engage in the enterprise we're currently engaged in. I'm having a lot of fun. And they're here under duress, actually. This is part of the course. And let me finally say thanks to my brother, Dawn, and his wife, Deb, for putting us up and putting up with us during this more than a week-long stay here in LFX. Now, Innis Christi was my teacher. He was my mentor, my colleague, and my greatest supporter. He was unmalentingly generous to me and on my behalf, even when I screwed up. He is the reason I am a labor lawyer and he is the reason I am an academic. I am profoundly, as are many, in his eternal debt. It is one of the true honors, I speak deep sincerity here, of my life to be asked to give this lecture in his name. Now, a lot has been said and said well about the magnificent arc of Innis's career. Innis has been and long will be justly celebrated and acknowledged for his teaching, for his shaping of generations of law students, for his academic writing, for his academic leadership, not only as dean but throughout his career, for his public service, for his strengths as an adjudicator, for his national reputation as an arbitrator, and as Harry Arthur's reminded us last year in the first lecture, for his influence on the very way people think about his field of law. But at the core of all these accomplishments was the real person, Innis. He embodied all that our profession aspires to. He was smart, he was principled, he had great judgment, he worked hard, he asked a lot of himself, and he expected others to do the same. He was decent, he was humane, he was down to earth, he was competitive, and he liked to laugh. In a world which increasingly seems to have far too few of them, he was a real hero. Martin Luther King famously said on the Washington Mall that he had a dream of a day when people quote would not be judged by the color of their skin. Most people remember that. Sometimes they forget that Dr. King went on to say but by the content of their character. Innis was a man of sterling character and the example he set by simply being Innis, I believe, why we remember in honor and so. Innis showed that being a wonderful person was not simply compatible with the great career in law but essential to it. Now, in this lecture in Innis' honor, I've made the decision, risky, to make an argument. It's an argument I hope that Innis would have liked. I'm not sure he would have agreed with it but I like to think that he would have liked the cut of its jib. I think this because the argument is a bit old fashioned because it tries to take legal thinking seriously on its own terms. Because its theory is close to the ground and has actually found it's some very simple first year law school type ideas. Because some fundamental labor issues are at stake and because it claims that what is at stake is important for all Canadians, not just Canadian workers. I also like to think that Innis would have liked the cut of its jib because it is somewhat contrarian. It goes against the grain of much current thought in some pretty high places like the Supreme Court of Canada. The fact that powerful people in high places say things does not make them true. I know that's a view that Innis shared. Finally, I like to think Innis would have liked the cut of its jib because the argument is made in the faith that clear thinking will in the end win out. Innis was not naive. He did not think that clear thinking was all we required in order to make the world a better place. But he understood deeply that without clear thinking, nothing worthwhile will come our way. Now before I make the argument in a number of steps, I'm worried about what the argument is about and where it is going and why I think it is important. I think most of you will know that on October 12th of this year, federal minister of labor, Lisa Raitt, issued the following edict in connection with the Air Canada Flight Attendance Negotiations quote, I hereby direct the Canada Industrial Relations Board to either impose a new collective agreement on the priorities or impose final binding arbitration to resolve outstanding terms of the collective agreement. And this order ended with a especially imperial flourish that I like, I must add quote, in witness whereof the minister of labor has here to set her hand this 12th day of October, 2012. Now my view is that this is entirely chilling and we should all wake up to that fact. In Putin's Russia or in China, over connections between state executives and powerful private interests are common. And respect for fundamental freedoms of ordinary citizens are defined. It's not supposed to be that way here. Now if you find this a bit strong, I ask you to consider what immediately preceded this edict. The ministers claim that there was a serious essential services issue, that is I quote the test, an immediate and serious danger to the safety or health of the public post quote, which was to be referred to the board which would have the effect of delaying any strike. I view it as a serious comment on the current state of our democracy when a minister of the crown can almost winking at us make such a transparently unfounded and equally transparently motivated claim in any circumstances, let alone in serious issues and fundamental freedoms are at strike. Now for me, perhaps the worst part of all this was the reaction of a large part of the Canadian public and the Canadian media that this is normal business. As I'm all right, Jack seems to be an increasingly new component of the morality of our time. Now the good news is that this sort of exercise of state power is in my view illegal. This is what the most important cases we read in law school tell us. Ron Carelli and Duclesi, Smith and Ruland, more recently the Insight Safe Injection case. As these cases show, unlike Russia or China, we still have a judicial system without the power and the will to enforce our basic ideas about living in a society governed by law and not by executive command. Now, here I'm getting closer to my argument. There's a problem, however, in connection with cases like Air Canada. The argument here is that we are at risk when it comes to getting the Air Canada case correctly decided, straightened out. This is because it has a constitutional dimension and any challenge to minister rates actions will be argued in the Air Canada case and the Post Office case and others that will come our way as a Section 2D of the Charter Freedom of Association case. And I think the Supreme Court of Canada has unnecessarily but darkly muddied the waters of Section 2D and that as a result, we are in grave danger when it comes to the court's ability to get this one right. What I wish to do here and what my argument is about is to clarify our thinking about freedom of association, to clarify the waters, to remove what I see as a clear and present danger to our ability to do what has to be done in situations of the sort we now confront. Now, I know some people in the room are not labor lawyers, a lot of you are labor lawyers, but for those of you who are not, just a brief note, this argument in this lecture is about the most important labor law decisions of my lifetime. They're called Dunmore, BC, as in British Columbia Health Services, and Frasier. Now, let me just note for the non-labor lawyers that in 2007 in the BC Health Services case, the Supreme Court of Canada following an opening that it had created for itself in 2001 in the Dunmore decision, dramatically overturned 20 years of Charter Jurisprudence and held that our Constitutional Guarantee of Freedom of Association, Section 2D, protects collective bargaining. As most people put it, the court held that there is a Constitutional right to collectively bargain. The 2011 Frasier decision affirms this holding, basically. But in those cases, the court expressly did not decide whether there is a Constitutional right to strike. It left that question explicitly open for another day. This is the issue that's on the table now. Is there a Constitutional right to strike? This is the issue which has been placed front and center by the actions of our federal government in Air Canada and elsewhere. Now, the problem is these most important decisions on my lifetime are deeply confused in their thinking. This confusion stands in the way of the court getting the abuses of power we witness under legal control. They will, if not addressed, block a much needed response equal in power to Ron Carelli and DiClessi or Smith and Rowland. But my interest in the case is even deeper. Their potential to do harm is very basic and extends beyond Air Canada and beyond the labor law area. They are a threat to our rights and freedoms in general. That is, I believe that what they say is quite wrong and wrong in a way which affects all of our fundamental freedoms and rights. Now, here's the core of the argument. This is because these cases misunderstand a crucial distinction, the distinction between rights and freedoms. The Supreme Court of Canada not only confuses the distinction I seek to defend, but it purports to be positively hostile to it. In Frasier, the majority actually says, and I quote, the Charter cannot be separated into two kinds of guarantees, rights and freedoms. Close quote. This is, in my view, a really unfortunate remark to have your Supreme Court utter. It can only, to someone saying, there's no distinction between a plot flyout and a home run. You can't make that true by saying, okay? Concepts have a grammar you don't get to make them up. Now, how will the argument proceed? The argument starts with some very basic reminders about private law, that is common law. It does so because I believe we have to do this to see what's really going on in our constitutional cases. Some of our most important cases in the history of Canadian labor law, heresies of Woodstock, Pepsi-Cola, will be prominent in my examples, are about private law ideas. They are about the common law. The problem is, these very basic ideas often go AWOL, they often go missing. Sometimes they show back up again. Legal life is always better when they don't go missing. Now, after having talked about the common law of rights and freedoms, I will argue that these very basic common law ideas are required to understand what our basic labor law statutes are up to. In order to understand what the Nova Scotia Trade Union Act actually does, we have to start back with the rule of common law, and then we can see clearly what the statute is doing in terms of our basic ideas. Finally, I make the claim that our basic ideas not only make our common law and statutes clear, they are also required to make sense of all of our recent constitutional litigation regarding freedom of association. That is we need these basic ideas to see what's really going on in Dunmore, BC Health and Frazier. Now, my argument that should be plain by now is that we will never be able to understand what is so dangerously wrong with the Frazier case and never be in a position to right the wrongs of our Canada without our basic ideas coming home and shedding their light on these and most important cases. So the argument goes in a number of steps, but it basically goes common law, statute law, constitutional law. Here are the basic ideas which often go missing. The first is this. It is the distinction between rights and freedoms. There is, in spite of what the Supreme Court says, a basic distinction between freedoms and rights. It is this. Rights have to do with what I can demand that you do. Pay me a thousand dollars because I've got a court order telling you to do that. Or not do, not assault me. Rights are about what I can demand that you do or not do. Freedoms are about what I can do. In some deep sense, they have nothing to do with you. Okay? Freedoms are about what I am free to do or not do. To speak or not. To think this or not this. To join a union or not. To worship a God or not. That's what freedoms are about. It makes no sense, therefore. It's a bit of conceptual confusion for anyone to say, quote, I have a right to free speech, close quote. I do not have a right to free speech. I have the freedom to speak. That's the distinction I'm at. Now, you're saying, oh my God, this is crazy. Everybody says that all the time. How is this possible? People do say it all the time. Normal non-lawyers say it. Lawyers say it. Judges say it. The Supreme Court of Canada says it. I find myself slipping into it from time to time. It's a natural way to speak, to say I have a right to free speech. Why? If it's conceptual nonsense, why do people speak this way? Well, I see it as follows. We may understand why people make this way of speaking ordinary, but not excuse it, by the fact that my freedom of speech, for example, is in fact protected by what I will call, and others have called, a perimeter of what are precisely and accurately called rights. So you cannot put your hand over my mouth to stop me exercising my freedom to speak. Or you cannot send a bunch of thugs around to beat me up to stop me joining a union. Those would be torques. Those would be assaults. These tort rights that I have against you that you not assault me, right, are part of the background, normally applicable, in place legal rules that all of us have all of the time. And they apply to all of us equally. In some sense, this is the problem with the common law. It has a very formal view of equality here. But you have exactly the same contract rights as I do. Employers and employees have exactly the same freedoms as each other. We all have the same tort rights. There is a general background distribution of equal rights and freedoms that the common law has in place. So I think this confusion, this way of speaking, is created by the fact that we do have rights that protect my freedom to speech. But on the view I'm advising that we keep focused on, we have to be really clear that what I actually have a right to is that you not assault me when I am exercising my freedom to speak. Those are two separate legal matters. Now, that's the first idea. It is really fundamental that people lose sight of it. Now, even more primitive is the second idea. This is the distinction between your actions that affect me and my interests on the one hand and your actions which violate my legal rights on the other. So, Tro has already been mentioned. Let's use this example. I am free to start a restaurant in Tro. So are you. My restaurant may have a big impact on your restaurant and your interests and your exercise of your freedoms. If I start a restaurant and it is very good, it may drive your not very good restaurant out of business. Although most likely the other way around. Seems to be a lot of terrible restaurants are driving very good establishments out of business. But, leaving that aside as an empirical matter, the exercise of your freedom may have a really significant impact on my interests and the way things turn out for me. But I have not violated and you have not violated my legal rights. My exercise of my freedom has had an impact upon your exercise of your freedom and upon your material interests. But here the freedoms simply contend or contest in fact. They do not conflict in law. So, here are the two basic ideas. The distinction between rights and freedoms. And secondly, the distinction between things you do that affect my interests and things you do that actually violate my legal rights. Now, there is a third idea that follows from those four first two. Let me just briefly mention it. And we often lose sight of this as well. It follows from these two ideas which often go missing. That we cannot even get into court. And we have no worries about a judge trying to balance the exercise of our freedoms. The idea of a judge weighing up our interests is foreign to our understanding of freedoms. We do not want and we do not expect a judge to weigh up which of the two competing restaurants in Toronto deserves to win. But so too, if you violate my rights then there is also no balancing. We do not want and we do not get judges saying things like quote yes the defendants burned down your restaurant but you must understand they had vital interests at stake. They have rent to pay, they have a payroll, they have three kids in college. So I really have to take their interest into account and balance them with yours. We don't get that, we don't want that. That is absolutely fundamentally legally bad thinking to even entertain the idea of a judge balancing contending freedoms. Okay, and if we have a violation of right we don't get balancing either. We simply go from the violation of the right to a vindication of it unmediated by any balancing or proportionality type test. Now, let me give you an example of the lost ideas in action or the lost ideas not in action or ideas lost in action. I'm not sure what the right way of actually putting this is. And it is the famous 1963 Ontario Court of Appeals decision in herces of Woodstock. Every labor lawyer knows this by heart almost for those of you who are not labor lawyers the facts were really simple. There was a labor dispute at a shirt manufacturing plant. The union approached a retail store selling the shirts and asked the store to stop selling it. The store owner refused. The union picketed the store. Two men walked up and down on the public sidewalk with a sign which read, quote, attention shoppers, deacon brothers, the name of the struck manufacturer, sportswear sold at herces, the name of the shop, and they handed out leaflets. All very peaceful, all very Canadian. I'm reminded of that New Yorker cartoon sometimes when I'm in the States and people ask me to explain the difference between Canada and America on labor law and other things. I use this example when in Canada people are pretty moderate and there's a New Yorker cartoon called The Revolt of the Moderates and it's a two-panel cartoon and it shows a bunch of people walking down the street signs and there's a man at the front with a megaphone and he yells out, what do we want? And the crowd yells back, meaningful change. Second panel, when do we want it? The crowd yells back, in due course. The facts of heresies remind me of this. So very peaceful picketing, all very Canadian. Now back to the Ontario Court of Appeal went on to make a mess of the analysis of some economic torch, especially inducing breach of contract and then we just interject and say this is the kind of sloppy thinking that Innis was an expert at exposing. But then the court famously almost wonderfully went on, it's almost too good to be true to have a court say this sort of thing, the following quote, but even assuming that the picketing carried on by the union was lawful in the sense that it was merely peaceful picketing for the purposes of only communicating information, I think it should be restrained. Nice empirical flourish. The store owner has a right lawfully to engage in its business of retaining merchandise to the public. Therefore the right, if there be such a right of the union to engage in picketing of the store owner's premises must give way to the store owner's right because the latter is a right far more fundamental and a far greater importance. Now, here's the immediate payoff. That is just legal nonsense and we have just reviewed the reasons why. Our three ideas show why. First, the store owner does not have a right to engage in business, it has a freedom. The workers do not have a right to pick it, they have the freedom to do so. Second, these freedoms do not and cannot conceptually conflict in law at all. They merely contend or contest in fact. Third, when there is no violation of the right, as the judge says, even assuming the picketing was peaceful and it was lawful, we do not need and should not get into any balancing test at all. So our three ideas here are just perfectly mappable on to this most famous Ontario Court of Appeal decision. For me, this is the point we're discussing in class today, the problem with the judge saying that the right to trade is quote far more fundamental than the right of the workers to pick it is not that it is wrong, although you may agree with me that freedom of speech is right up there with the best of them in terms of fundamentalist. But my point is not that it's wrong, it is rather that a judge to say anything is an insult to the basics of our legal system, which we have just reviewed. Now, my view is there's no judicial work to be done here at all. Yes, the store owner's interests may have been affected. Some consumers stopped buying shirts in solidarity, but not its rights. Just as a store owner carry on selling the shirts may have an egg of an impact on the interests of the striking workers. But this is all legally meaningless. There is nothing to adjudicate here. There is no violation of a right, but we need our basic ideas to see this. When we do keep our eyes on these basic ideas, we see that heresies of Woodstock is just our two restaurants in Toronto. In Toronto, how about that? In Truro example, right? We want to need the same solution to heresies as we want to need to the two restaurants in Toronto. That's right. I've been away for almost 30 years. It's hard to get back in the Truro groove. Now, here's the partially good news, I think. Sometimes our lost ideas, like prodigal sons, find their way home. As they did in Canada in 2002, in the Supreme Court of Canada decision in Pepsi Cola. In that case, heresies of Woodstock was relegated to the legal scrap heap. Pepsi is a beautiful decision. Why? Because it keeps its eye on the ball of these three basic legal ideas and gets them right. The facts were essentially identical to heresies, striking workers from a Pepsi plant, picketed retail stores, selling Pepsi products. But the approach that the employer complains, seeks an injunction relying on heresies of Woodstock. But the approach taken in Pepsi is exactly the opposite of that taken in heresies and explicitly so. It is an approach that goes back to our legal basics and gets them right. The lost ideas find their way home. The Supreme Court said the correct approach was to hold that picketing, even secondary, is to be permitted unless it involves a legal law, a violation of a right, a tort or a crime. This is, as we have seen, surely correct. There is no need for balancing for a court or anyone else other than the parties and the consumers being appealed to here to make a decision about how to respond confronted with this contest of freedoms, to try to balance these freedoms, is an affront to the very idea of freedom. Now, that's the end of the common law story. I'm going to make the move from common law to statutes and the plea here is, the idea here is, these really simple ideas that we've been discussing that went missing in heresies but came home in Pepsi are really important to understand what statutes like the Nova Scotia Trade Union Act are all about. Now, many people in this room live with the Nova Scotia Trade Union Act on a daily basis. They know it off my heart. I think what I'm going to say, though, may be something that people haven't thought about in at least a little while. Let me start by saying this. So, at common law, there is a common law of freedom of association, we've just seen it. I'm free to speak a common law that's protected by a perimeter of tort rights. I'm a free to associate with you a common law that's protected by a perimeter of tort rights. That perimeter of background rights protects my exercise of the freedom against other private actors. So if the employer sends around a bunch of goons to beat me up because I want to join a union, that's a tort that protects my exercise of my freedom to associate with other workers. But sometimes we as a society make the decision that we need to do more than protect basic freedoms to speak, to associate, and so on, with more than just the normally in place background set of rights and freedoms that we all share all the time. Sometimes we construct what I believe are properly called derivative rights, that is rights derived from the freedom for the purpose of protecting the exercise of the freedom. That is sometimes we interfere with the freedoms of others in order to protect workers' freedoms to associate. We alter the background rules. We trade freedom for freedom. Labor lawyers are very, very familiar with this move. It's what the Nova Scotia Trade Union Act or the Interior Labor Relations Act is all about. It's all about reallocating, rejigging. The neutral in place, everybody has an all time background set of rights and freedoms. Now, we alter the background rules. Now, the foundational section of the Ontario Labor Relations Act is section five, which has the beauty of being correctly worded. It says every person is free to join a trade union of the person's own choice and to participate in his lawful activities. That is what the statute is all about. It's about that freedom. Doesn't care how you exercise that freedom. Doesn't care whether you join a union or not join a union. What it's about is the freedom to choose either way. And it actually uses the word free, which is really, really important. I tell my students in labor law, that's what the statute is all about. The rest is just detail protecting section five. Now, if all we had was section five, we would have the normally in place of perimeter of tort rights. You can't send a bunch of thugs around to beat me up because that would be an assault perimeter of protection around the freedom, right? But that's not all there is. The reason we have the trade union act, the Ontario Labor Relations Act, and statutes of similar all across the country and in North America. The reason we have the Wagner Act model is people like to call it increasingly so these days, is that we're not content with the normal background set of rights and duties. So the point of the statute is to articulate section five, the freedom, and then beef that up with a set of not normally in place, not background, quite special derivative rights, aimed at protecting section five, aimed at protecting freedom. So for those of you who don't read the act, there are two basic categories of provisions here that I want to talk about. The unfair labor practice provisions and the duty to bargain in good faith provision. Section 53.3 says, for example, no employer and no person acting on behalf of an employer shall refuse to employ or to continue to employ any person because that person is or was a member of the trade union. I won't take you through the other provisions, but there are other unfair labor practice provisions aimed at protecting the freedom and then there is the duty to bargain in good faith. All of these provisions, the structure of these provisions is to alter the background rules. These provisions are not part of the normal background, primitive rights, which happen to protect our freedom to associate. These provisions construct very specific right duty relationships, which are not part of the normal set of rules applying to all citizens. They are rights and duties created specifically to protect this freedom for this particular group, employees, for a particular purpose, associating. They are rights, which are properly called derivative rights. They are derived from, because they are necessary to the exercise of the freedom to associate. Most of this is pretty simple labor law, but for those of you who don't think about this all the time, here's just one concrete example of how these provisions work. I just read you Section 53.3, no employer can fire you because you've joined a union. Without 53.3, at common law, an employer can fire you for joining a union. Without 53.3, an employer is free to dismiss with reasonable notice an employee who joins a union, or not to hire such a person. This is just the basic common idea of freedom of contract. It's the Supreme Court of Canada in Christian York. You have absolute freedom of contract to decide with whom you will bargain and with whom you will not bargain. Both sides have it, it's a formal freedom. The employee also has the freedom to decide which employer to work for and not work for. That's just the common law, however unfair the common law is in all its equal splendor. The whole point of 53 is to alter that legal world, which still holds for almost all other reasons for hiring and firing and contracting more generally. It alters the world of equal freedom, which the normal background rules construct. It does so by limiting, most importantly, the employer's freedom. This is done by granting employees rights, which impose duties on employers. So we go from a world of contending freedoms, I'm free to bargain with whomever I like and the employer is free to bargain with whomever I like. If they decide they don't want to bargain with somebody who's a union member, they can do that, that's their common law freedom. We go from that world of contending freedoms to a world where the employer's freedom is taken away and replaced with a duty and a right given to the employee. The employee has a right and the employer has a duty not to dismiss the employee because they joined union. The common law world is restructured. We go from a world where it's just both parties having equal freedoms to a world where we trade off, in effect, the employer's freedom in order to protect the worker's freedom. Now, bear with me, we'll get to the constitution right now. But the basic idea is this right freedom distinction and the distinction between things you do that affect my interests and things that you do that affect my rights is critical to understanding the structure of common law things and then to understand the structure of the trade union. It really is about moving from a world of contending freedoms to a world where we're constructing these derivative rights largely in favor of workers. And duties upon employers. Constitution. This is the final move, common law statute constitution. Now, the suggestion is with the structure and thought in mind, we can see what's really going on in our recent charter cases on 2D. We now have a charter. We now have section 2D. That's something new. Before we just had the common law, with its normally in place background of perimeter rights, we had the Nova Scotia Trade Union Act with its set of specific derivative rights protecting the freedom to associate. Now we have a constitutional guarantee. What does that add? Well, every constitutional scholar agrees that what it adds, in addition to the normal common law set of perimeter rights protecting my freedom against other private actors. In addition to my statutory rights protecting my freedom against private actors, we now have a right against the state. That is 2D at a minimum is, what 2D does at a minimum is to add to the preexisting common law statutory rights a new right against the state that it not infringed the freedom as it so dramatically did in BC Health or Air Canada. Now that's the easy part. Everybody agrees that 2D does that. But here's the hard part. The hard part is not when does 2D protect us all against state interference with our freedoms. It is rather when does 2D protect us against other private actors interfering with our freedoms? To put this in a more common form, when does the charter create or force legislators to create derivative rights? That is, when is there a constitutional duty on a legislature to pass laws restricting the freedoms of private actors, mainly employers, which interfere with worker exercise of their freedom? When is the question these cases is, in the hard cases is, when is there a constitutional duty to alter the background rules? We do it by statute in the Trade Union Act. But now the question is, when is there a constitutional duty for the legislature to do that? And the best way of seeing that is to see this through the right freedom distinction. When is there a constitutional duty to interfere with the contest of freedoms normally in place, impose right duty relationships mainly on employers, when must the state do that because 2D says there is a freedom to associate? That's the hard case. Why is it hard? Because we actually are trading freedom for freedom. We're actually saying there's a constitutional duty to interfere with one set of private actors' freedom in order to protect another set of private actors' freedom. That's what makes these cases tough cases. So to come to the cases, the question in Dunmore was, was the state obligated by Section 2D of the Charter to create for agricultural workers Section 53, 3 and 53, 1 type derivative unfair labor practice rights against private actors, i.e. employers? Dunmore, yes, 2D does require the legislature to interfere with the background set of rights, to move away from the contest of freedoms between employers and employees and to alter that structure and put in place rights for employees, unfair labor practice rights. I think it's quite important to see exactly what's going on in Dunmore. The questions in BC Health where first did the state, not private actors, not employers in the agricultural industry, but the state, violate worker freedom of association by tearing up collective agreements and forbidding future negotiation? Second question in BC Health, whether 2D required the creation of Section 35 type derivative duty to bargain rights against private actors, i.e. employers? Answer, yes. So what's being put in place in Dunmore is the unfair labor practice provisions now are constitutionally demanded. In BC Health, duty to bargain is now constitutionally demanded. What I'm trying to make clear is the structure of that demand that what's happening here is the constitution according to these cases is demanding that the legislature alter the normally in place background rules contending freedoms and substitute, rejig those contending freedoms by putting in place these right duty relationships, these derivative rights in order to protect the workers' freedoms. Now, the question in Frasier was whether the state was constitutionally obligated by 2D to create all of the other derivative rights and duties of the Ontario Labor Relations Act in that case, all the other rights and duties in the Wagner Act model beyond 53, beyond 35, such as exclusivity of the right to arbitrate and so on and so forth. Answer at the Ontario Code of Appeal, yes, at the Supreme Court of Canada, no. Now, here's the point of all this slog to write freedom, interest, right stuff. Here's the payoff. I think we're now in a position to see the really big problem that we're left with after Frasier. Dunmore and Frasier really are derivative rights cases. The claim really is that 2D obligates the government to alter the background rules and create legislative derivative rights for these employees with relative duties on employers, right? 2D really requires the state to re-jig the background rules in order to protect the employees' freedom. But BC Health, like the trilogy before, or now the Air Canada case or the Canada Post case, is not a derivative right case. The claimants are not alleging that the state had a duty to intervene to alter the normal background rules coming to rights and freedoms of other private actors. They're not cases about private actors at all. The complainants in those cases were complaining that the state ran over their freedoms, not some other private actor. This is a very important distinction. Now, so what I'm saying is these are just two different categories of cases. Dunmore, Frasier, the state of cultural worker cases, BC Health, Air Canada, Canada Post, right? Why is it important? Because it's fundamental. Now, the language I use to capture this distinction is the following. Dunmore and Frasier are cases where the agricultural workers go to court and say the legislature has to go to bat for us. They have to go to bat for our freedom. They have to legislate these rights against these other private actors, agricultural employers who are making it impossible for us to exercise our freedom. It's a plea for the government to go to bat for us. The other set of cases, the Trilogy, BC Health, Air Canada Post Office, don't have that structure at all. These are cases where the government itself is taking a bat to the freedom, right? There's a distinction between going to bat for cases and taking a bat to cases. This is absolutely basic. This is what we've lost sight of in Frasier. This is the real, real problem. Now, I'm gonna repeat myself here, but let me just review this once more. In these going to bat type cases, going to bat type four, the state really is asked to create a derivative right. We really are asking the state to alter the background rules. We really are asking the state to take away the freedom of one party in order to protect the freedom of the other. That's what makes them hard cases. In those cases, we need a test which marks off the sort of circumstance where we should do that from the rest of the world where freedoms are already left to compete. We need an answer to the question, why is the freedom of this person to be altered via the imposition of a duty upon them, granting a right to the employee to be altered? Why is there a positive duty to legislate here and not elsewhere? Why is the normal constitutional default rule that the only obligation on the state is to respect the freedom, not protected, not sufficient? Now, here's the positive for labor lawyers. We've been doing this so long in our statutes that we're so used to having the Nova Scotia Treaty Union Act, but we actually lost sight of the structure of what's going on here. But statutorily, we all know that for a very long time we've had an answer to those questions because we say to each other, the reason we alter the normal background set of rights and freedoms, the reason we create these derivative rights, the reason we trade off freedom for freedom is because of inequality of bargaining power, that the absence of these derivative rights, if employees are just left with their normal common law set of freedoms and rights, this primitive rights, they will never actually get to exercise their freedom to association. Now, that seems to be the sort of test that we've articulated and done more in Frazier for our constitutional law. Only the test there is extremely stringent, right? You can get it statutorily by meeting this inequality of bargaining power test, but statutorily, only very bad, it's got to say constitutionally, only very badly off workers, especially badly off agricultural workers, get the benefit of the constitutional obligation to create the derivative rights. The M.P. officers don't get it, missionary workers would not get it, even Walmart workers won't get it, only specifically badly off agricultural workers, get the constitutional, get the constitution to kick in for them, go to bat for them. Justice Basterach and Dunmore distinguished the claim of the agricultural workers there from the previous claims by saying, the reason they get the derivative rights, the reason there's a positive obligation to legislate derivative rights here for agricultural workers is that their fundamental freedom would be impossible to exercise without the derivative rights. That's the test which gets repeated in Frazier, right? That constitutionally, we do it all the time statutorily, we create these derivative rights, but constitutionally, there's only a constitutional demand to do that, the constitutional demand to do that in these extraordinary cases where it would be impossible to exercise the freedom without the derivative rights. Now, here's the main point. That impossibility test, or some other very high standard like it, is a test we only need when we're asking the court to create a derivative right. We only need it in Dunmore and Frazier. This is not a test which had had any application at all in cases like BC Health or Air Canada. Nobody in those cases is asking the legislature to pass derivative rights. Nobody's saying the constitution demands in BC Health and Air Canada that the state create derivative rights, that they trade off some of these freedom from my freedom. All that's happening in those cases is the state is taking it back to the freedom. There's no trade off here, there's nothing hard about these cases, right? The idea that the stringent test of impossibility should be deployed here is extremely odd if you think about it. It's inconsistent with our basic understanding of the charter. This is the basic mistake that the majority makes in Frazier. They say, they really say this, the protection for collective bargaining all goes back to Dunmore. They say all the cases are Dunmore type cases. They say that BC Health follows directly from the principles enunciated in Dunmore. They say they are all derivative rights cases. They actually say at numerous points and for the first time that the right to collective bargaining is merely a derivative right. They say, and here's the critical quote, in every case, every charter, 2D case, freedom association case, the question is whether the impugned law or state action has the effect of making it impossible to act collectively. Now, this is all very wrong and very confused and I think we've seen why. When the state interferes with the exercise of any freedom, whether it's freedom of speech or religion or thought or association, the question is, are we free to do this or not? And the answer lies in whether the state can justify the interference or impact upon the freedom under section one of our charter. The question is not, do you, the citizen, really, really, really need to exercise the freedom? The question is supposed to be, does the state really, really, really need to interfere with it? Now, the hidden result of Fraser is to confuse these taking a bad two cases and going to bad four cases. They are different. The result of this confusion is the setting of the stage for a real evisceration of fundamental freedoms. We have lost the distinction between the easing of hard constitutional cases. All the cases are now hard. This is a bad idea. Now, here's the implication for the right to strike, say, in the Air Canada circumstances. If the freedom to strike, for example, is seen as a derivative right and thus one afforded to individuals only if they really, really, really need it, that is, it would be impossible to act collectively without it. Now, then I think we are just depriving to the, of any meaningful content, we're very unlikely to have a meaningful protection of a very fundamental liberty. Now, the drift to my argument is that we can avoid this, but the first necessary step to avoiding this circumstance, this result of Fraser, is to clearly see what Fraser has done. And then we can boy ourselves up a bit by reminding ourselves there is hope, right? Recall, this is what Pepsi got right. The same Supreme Court of Canada can actually bring to bear the correct legal thinking. Can recall the simple basic distinction between rights and freedoms and how they interrelate or come along our status in the Constitution. The court in that case was prepared to ask the questions that the lost ideas forces to ask. When do we need derivative rights for employers in that case? And when do we leave the contest of freedoms alone? And in Pepsi, they answered it correctly. There is in this case no good reason to interfere with the contest of freedoms and create a derivative right for the employer against the picketers. Just get the law out of here. Show me a tort or a crime and then we'll have some legal action. This is very basic and very important for all of our constitutional law. We are confronting these hard cases. We do have cases like Dunmore and Frazier. In these hard cases, of when does the Constitution require the legislature to pass derivative rights? When does the Constitution require the legislature to alter somebody else's freedom in the name of another party's freedom? And when not, that is a tough question. But by seeing that question, we got Herces properly overruled in Pepsi. We're also able, if we think clearly, to see what's really at stake in Dunmore and Frazier and agree or not whether it was sensibly answered. You might take the view that Dunmore and Frazier are way too narrow. This test of impossibility leading to only very badly off agricultural workers getting these derivative rights is wrong. All workers need these derivative rights. Walmart workers, you know, it's true. There's no mushroom factory organized in Ontario. It's all true. There's no Walmart store organized in Ontario. So many laborers would say all workers need the derivative rights. Others might take the view of Justice Rothstein's dissent and say, I think that's what he's saying, but it's unclear. We should never do this. We should never use 2D to take away somebody's freedom to create a derivative right in order to protect somebody else's freedom. That's just to misunderstand the concept of a fundamental freedom. Constitutions don't do that. Well, we could disagree about that, and I think we will be disagreeing about it for quite a long time. But the point I'm making is those disagreements are pertinent only to Dunmore-Frazier-type cases, only to cases where we actually are asking the court to create derivative rights, to alter the background rules, to trade off one person's freedom for another, essentially, to take away the employer's freedom and replace it with a right in favor of the employee. My point is we are nowhere near those hard questions, and we should be nowhere near a test of impossibility when we aren't asking the court to create a derivative right, where there's no private actor whose freedom is being traded off inside at all. So in Air Canada and BC Health, we just have the unedifying circumstance of the state taking it back to the freedom. And I always thought, and I think most constitutional lawyers always thought, that when the state does that, they face a heavy notice, not the victim, but the perpetrator, faces a heavy notice to prove that, yes, we are taking it back to your freedom, but it's justified under our section one test of the Charter. We cut that completely backward. What Frazier is saying is there's no distinction between derivative right cases, there's no distinction in the other cases, no distinction between taking it back to or going to bat four, and that's what really, really worries me. My view is that we are all interested in freedom, real freedom. In some extraordinary circumstances, agricultural workers, that the constitution requires the alteration of the normal and formally equal distribution of legal freedoms of others in the name of protecting their legal freedom. We have a stringent test in these going to bat four freedom type cases. But there the issue really is freedom for freedom, and the claiming party must meet a strict test, i.e. offer a very powerful justification for the trade off of the other person's freedom for theirs. The party arguing for a limit on freedom of others meets a high hurdle. But because freedom is what is important, we also never let the state simply take away the freedoms of Canadians, for reasons of inconvenience, ideology, or anything else. In these taking it back to the freedom cases, the test cannot be won with the heavy on us on the citizen, but rather on the state, that is the party seeking to limit the freedom. Frazier gets this very wrong. So my view is we used to have two categories of cases, easy and hard. They're all now hard. That's not good. It's not good for people interested in protecting their freedoms. Now in preparing for this visit back home, the Dalai was leafing through Ines' book based upon his Cambridge thesis, The Liability of Strikers and the Law of Tort. And at the very end of that book, in fact in the very last sentence, Ines makes a point, which I like to think I'm trying to make here. He's, at the end of the book, he's saying here are some of the things I didn't get to cover, including strikes in essential services. And he wrote, and I quote, these are matters which are beyond the scope of this book. But it is clear that provisions in our law for emergencies and special cases will be adequate, only if they are superimposed on a law that provides rationally for normal industrial disputes. Close quote. Now, that's what I'm pleading for. Rationality, clear thinking, all in the name of protecting fundamental freedoms. And the reason I wanted to speak about this tonight is that I think the Supreme Court of Canada is making it really difficult for us to think rationally in these important type of cases. That's my argument. Thanks for listening to it. Now, there's a point to be a reception upstairs. And we probably would all like to go into the break, but we're all committed to the issues which Brian has been talking about. And Brian has indicated that he will be willing to take questions for 10 minutes or so. And I think it would be useful to hear people's views and hear people's questions. Do you want me to play referee or anyone who wants to play a professor? We'll have to find a question for someone else. Is there Diane? Diane is sitting in the front of the seat where she always sits. And in my classes, she'd look up at me and say, that can't be right. Are you going to do that, Diane? No, no, no, no, no, no, no, no, no, no, no. The air Canada was kind of close. Canada was fairly an ability to download a constitutional basis when the session was passed. In the air Canada case, for me, your mortuary is within an awful hundred percent of the session. And he said, you are accepted. Call it the option. I thought that most of the industry actions that I was in Canada, the industry I mentioned before, that didn't just say this, it's garbage to say And on this point, Diane knows what she thinks for me. She's a constitutional lawyer, anti-lawyer, but she also worked at the Canada Labor Relations Court. It's changed the same place. I used to work there before you. I agree with you. I thought it was a shameful performance. I actually had to sit beside the chair of the court at a dinner in the middle of this and tell a complaint to my ability to actually explain the facts of life to her. But at any rate, really not to the barricade side, I think the board being very bad. And I didn't share the board. I would have handled it very differently. I'm sure we would as well. There's also the extraordinary role of the issue of press release. In fact, I have a legal conclusion in it that by the minister doing this, they do this by press release. That's quite an extraordinary thing. But the part that I think you need to get ahead of is that the legal... I actually think the Eurotanity case, the reference to the board under section 107, is not a constitutional case at all. It's a Ron Carelli under custody. It's a Smith and Ruland. It's just an abusive discretion, which wouldn't stand any Ron Carelli-type analysis or Smith and Ruland type. In this under section, most people know about the essential services argument that the minister mounted under section 84, I think, with the court. But she actually sent two permissives off to the board. One under section 84, helping them to acquire the essential services. But she sent a second one under section 107, and that's the one I quoted for. Under section 107, she can refer questions to the board. But what she did was refer a question in which no interpretation of that discretion could possibly happen. She's telling that the board to do things the board itself, as already cited, would be illegal to do. Like impose binding arbitration on parties to an industrial dispute. It's quite an extraordinary thing. So I think you're right. I think it's just a pure, there's a constitutional problem that's bubbling up here. But the facts are there, there's just this straight ahead administrative abusive discretion case, which I think we should all keep our eye on as well. But then we should have hope about that. I mean, the safe injection site case came down just a couple of weeks before. It is just like Ron Carell. It's just like Smith and Rulam. My former student, Tony Clement, the minister, abuses his discretion. You've got to make a call. The court says you make it a rash. That's not the way we allow people to exercise discretion in Canada. It's just Ron Carell. It's just Smith and Rulam. In all these cases, some part of the apparatus of state power of the Labor Board or the Prime Minister or the Minister of Labor, whoever it is, has a discretion. The board may certify and the law steps in and says that doesn't mean you get to do what you want. Law is not about when. Law is about rationality. Law is about attending to rational, relevant considerations. So I think in spite of the fact that I think we're in a tough spot here across the Frasier, there really are bright lights around like Pepsi and the safe injection site decisions. So I think there's reason to think that we still do, as I said, have a court that's willing to stand up at these things. I think my problem is, I actually think it's just weak thinking. It's not a good idea. I think it really jeopardizes the deep confusion here, and that's what I want to clarify. I hope that if you could just see what's really going on, and it's very different in these two types of cases, we'll end up with two different tests for these two different cases, a test appropriate to each, not one test, which is appropriate on one side. Totally inappropriate on the other. It's a tough argument, though. I really wonder whether to run a lecture which had an argument in it, I thought of doing something of the sort we were doing in the class with the students and sort of do something like Harry Arthur's did last year and have an overarching thing about the future and past of label law and so on and so forth. But I actually came to the conclusion that this is so disturbing that it would be worthwhile actually trying to nail this. And I hope it wasn't a terribly serious error, for your indulgence. Ray, I'll ask you a question. You said this is terrible. Two of the best lawyers in front of this school have jumped all over me. Well, you did leave me a little bit confused. Good for you. At first, as I was listening to the way you worked your way through the issue, I was thinking to myself, well, isn't this what people refer to as formalistic freedoms rights? Because it seems to me that there are circumstances, socioeconomic circumstances in which the exercise of a freedom is not possible without the state intervening to make that possible. But it did seem to me then later on in your analysis, you seemed to recognize that. That's what left me confused, that the freedom may actually require rights to be recognized in order for people to exercise the freedom. And I'm not sure whether you accept that or not. I think you've gotten exactly right. I do accept that. And remember, this is an argument about clarity in legal thinking. It's not an argument about power. It's not a political science argument. It's not an industrial relations argument. It's not a sociological argument. It's not an argument about making a more productive candidate or anything like that. I'm really trying to lay bare the architecture of thought which is in play, that state, which is actually being fiddled around with when we make those judgments that you point to. So the whole point of starting with the common law and this formal distribution of equal freedoms is to show exactly what we're doing when we step in with the Nova Scotia Trade Union Act to rejig those in the name of the very concerns that you mentioned. So all I'm trying to do is lay bare the legal structure of the very move that all labor lawyers are so terribly familiar with. The common law distribution of rights and freedoms is purely formal and it means from the employee's point of view they're never going to realize what it is we want them to realize in the labor market. So we step in and we rejig the rules comprehensively. The Nova Scotia Trade Union Act is a comprehensive rejigging of both employers and employees' freedoms across the board. It's a complex system of completely rewriting the background rules. Employees lose their freedoms too. I've been concentrating on the Unfair Labor Act as a division in the duty of work but they lose their freedom to strike for recognition. They lose their freedom to strike for recognition. So it's a complex set of trade-offs. This is why I think at the end of the day the Nova Scotia Trade Union Act is not unconstitutional. It's such a complex set of trade-offs that it's going to pass section... It prime a facey while it's everybody's freedom all the time. But it's going to pass section one muster because it is such a complex set of trade-offs. So I'm with you in our class. In the class we're actually doing two things. I'm writing this technical legal argument and I actually believe that when you strip out the economics, the law, the power, the sociology, the industrial relations, there still is law. It's not reducible to all these other things. So I think when we get this basic legal thinking straight we can then step back and lay, make our political judgments about how we should play this game. All I'm trying to lay bare is the game that we are actually playing. And I think most labor lawyers are very accustomed to those employer lawyers and union lawyers that the way we play the game here is we have systematically re-jig the rules mostly in favor of employees and the name of increasing their bargaining power in the name of the theory that they suffer from inequality of bargaining power. That's the whole purpose. But that kind of political purpose is one thing. How we go about it is what I'm trying to lay bare. And unless we pay attention to the details of how we're going about it we start with freedom, freedom, we move to freedom, we get the right duty, right? And then we get to the Constitution. I think it's really important to keep these distinctions in mind to see that in some cases we really are asking the court to say that the Constitution demands that the legislature re-jig the rules but in some cases we're not. It's just freedom straight out no derivative right being asked for at all. And the cost of not being analytically clear is the confusion we get in Frasier. It's so muddled. I mean they still believe that there's a collective individual right. There's confusion upon confusion upon confusion up there. And all I'm trying to do is clear it out of the way and say, look, these cases look like this. These other cases look like that. They are not the same thing. They do not all come from judgment. They are not all derivative right cases. But the good stuff. In class we had most fun doing, we were reading Marcia Sand and Arthur Disbaum capability theory all with a view to coming up with a theory that would tell us how do we know when to re-jig the rules? And the live view is the old theory that's all about inequality of party power, feeling sorry for the weaker party. That's an inadequate theory. We can have a much more robust theory about why we have the Nova Scotia trade union or the rights curve. So in the class we're actually doing both of these things. We're trying to run the technical, lay there the architecture of the argument stuff and then lay on top of it the normative stuff that would tell us how to play within that system. So what we didn't do that today. We had to come to class. I think we need a drink though. Oh hell, I can do that in five seconds. My main argument is that some people in the room know is that this whole 2D extravaganza is completely unnecessary, unhelpful, and we'd be way better off if we argued cases like Dunmore and Frazier as equality cases. Why? My view is the Ontario Lay Relations Act which is the act that's taken Dunmore and Frazier is the legislature's attempt to instantiate section 2D freedom of association. We have these three words in the charter freedom of association. How many words are there in the Novik Association Trade Union Act with the Ontario Lay Relations Act? Ten thousand? I don't know. Thousands of words. What those words are doing is trying to make real, legally enforceable, concrete, enforced by labor board people like Bruce with real remedies. You get people's jobs back. To bring it down from the abstract constitutional international human rights norm to a real instantiation of that freedom to associate for real Canadian workers. The problem in Dunmore and Frazier is that we have a fundamental failure of equality. We've made that freedom real for almost everybody else but left these people out. The real question in Dunmore and Frazier is how can you go around making a freedom real for virtually everybody else and leave us out with a particularly vulnerable? That's an equality claim. That is, I think it's the unequal distribution of the instantiation of the fundamental freedom which is real estate. Now the reason we don't argue that as a Section 15 case is the Supreme Court of Canada has read down Section 15 from an equality provision to a non-discrimination provision. This is terrible in my view. I believe that at the very minimum Section 15 should cover what it does cover now protection for what the Americans call discrete and incident minorities, anti-discrimination function. But it should also protect the distribution of fundamental freedoms. So I think this is just this whole show from Dunmore. Dunmore is an attempt, this is going down to now, to shove a Section 15 case into 2D. It just won't go. It's a square peg in a round hole problem. That's why we end up with this mess because we're trying to do something that's conceptually really incoherent. But more than that, if we did it under Section 15, life would be so much easier. People used to talk to us in class about the past of virtues. Section 15 is the easy way to cut through this. If we do these cases under 2D, we have this unedifying spectacle of the Supreme Court trying to imagine what these three words mean. Does that conclude it? Does that have to conjure out of the three words something like the whole of the Nova Scotia trade union? That's a very difficult thing for judges to do. It's also undemocratic. It's a really, really hard, hard thing. Under the Section 15 route, we don't have to know what the meaning of 2D is. We don't have to be able to say, I've divine the true meaning of the three words, freedom of association. All we have to say is, we may not know what the perfect theory of freedom of association is. But we know how Ontario has instantiated it. And all we're saying is, if you're going to instantiate it that way, you can't leave somebody, some folks out. You just can't go around protecting fundamental freedoms for some people and not others. That's just an unequal distribution of the freedom. And the result of that would be, we have no constitutionalization of the Wagner Act. We wouldn't have, we now have constitutionalized unfairly practices. We now have a constitutionalized 2D debarring of faith. We came, if Winkler had been the Supreme Court rather than the Court of Appeal, we would have the constitutionalized complete Wagner Act law. And that's what Warren Winkler did. And Warren Winkler is one of the best naval lawyers in the country. I mean, I think he knew exactly what he was doing. My view is, that's a big, unnecessary, costly mistake. And I think for people like you, right, and even inside people who have to litigate these things, the Court has now created an enormous barrier for you. Because they now see this constitutionalizing of the Wagner Act model problem as a real problem. So every time you go up now and ask for something, right, the strike's going to be next, you're going to be fighting an unnecessary demon, and then going up on a necessary hill, right, of the constitutionalization of a particular model argument. Do it under Section 15, you're home and dry. You don't face that challenge at all. So I think it's got built-in headwinds for realization of the freedom doing it under 2D. And then to make matters worse, we have Frazier, which just gets these two tests mixed up for these two very different types of cases. So not only do you face this specter that haunts these cases, you now have this impossibility hurdle you've got to get over, right? That's a really, really bad situation to be in. It's a bad situation for our freedoms to be in, not just for you and your clients, but what's happening now is, right, they're saying anybody who brings a 2D claim has got to meet this impossibility. They have to prove that the state is made it impossible for you to associate. That's not the way it's supposed to be. It's supposed to be the other way around. The heavy onus is supposed to be on the state to say, we have a really good reason for interfering with your freedom. That's the normal structure of things. They've really messed up 2D for everybody by missing some very fundamental stuff. That's the argument. If by your applause, all of this said everything we need to say, it's certainly wonderful to have Brian back in town. He has no objection in speaking to power. I was at a conference where Reverend Lothman was the headmaster here and just after V.C. Huth was decided and Brian very carefully, politely, but pointedly in his presentation the next morning where she was present told him why the Supreme Court had got it all wrong. I look forward to reading the version which I hope you will provide so that we can publish it in the now housing law general of the written product so that we can study it with more care. I'd like to say as well that for those of you who attended the first conference last year, the first Christi visiting lecture conference in Symposium, the Dalhousie law general with those articles is going to be out very soon and people who attend these will receive a copy as I understand it. So we're looking forward to that. And we're all looking forward to socializing and having a great upstairs and thanks to Elizabeth Seinfeld for organizing this event and making my job very simple. Thanks very much and for organizing our reception upstairs too. Thank you.