Lavigne v. Ontario Public Service Employees Union
Encyclopedia
| Lavigne v. Ontario Public Service Employees Union | ||||||
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 Supreme Court of Canada |
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| Argued June 18 - 19, 1990 Decided June 27, 1991 |
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Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 is a leading Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on freedom of expression under section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
and freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
under section 2(d) of the Charter.
Background
Francis Lavigne had been a teacher at an Ontario community college. Lavigne was not a member of the Ontario Public Services Employees Union (OPSEU) and not required to be. Lavigne did not oppose the Rand formulaRand formula
In Canadian labour law, the Rand formula is a workplace situation where the payment of trade union dues is mandatory regardless of the worker's union status...
requirement to pay dues but did oppose the use of some of his dues for activities unrelated to a union's core workplace causes.
The Canadian Civil Liberties Association
Canadian Civil Liberties Association
The Canadian Civil Liberties Association or CCLA, is Canada's leading national organization devoted to the defence of civil liberties and constitutional rights, both inside and outside the courts. The organization's work focuses on constitutional litigation, law reform, advocating on civil...
intervened to support the union position, saying "Lavigne's protection is in his right to join or not to join the organization; and to use or not use the democratic process [of the organization]."
Under the union's constitution they were allowed to use the fees collected towards the advancement of the "common interests, economic, social and political, of the members and of all public employees, wherever possible, by all appropriate means". OPSEU put some of the money towards interests such as disarmament campaigns, the National Union of Mine Workers in the United Kingdom, health care workers' union in Nicaragua, and sponsored events for the New Democratic Party
New Democratic Party
The New Democratic Party , commonly referred to as the NDP, is a federal social-democratic political party in Canada. The interim leader of the NDP is Nycole Turmel who was appointed to the position due to the illness of Jack Layton, who died on August 22, 2011. The provincial wings of the NDP in...
.
The practice was not unusual for similar unions, nonetheless, Lavigne opposed many of the causes supported by OPSEU. He brought an application for declaratory relief against the union on the basis that the Colleges Collective Bargaining Act, which gave the unions power to allocate funds to causes of their choosing, violated his right to freedom of expression and association under section 2(b) and 2(d) of the Charter.
The Supreme Court of Canada considered the following issues:
- Whether the Charter applied.
- If so, whether the payments to the OPSEU infringed his freedom of expression guarantee under section 2(b) of the Charter.
- Whether the payments to the OPSEU infringed his freedom of association under section 2(d) of the Charter.
- If any violation is found, whether the violation can be saved under section 1 of the Charter.
Opinion of the Court
The Court unanimously held that the Charter did apply. They also decided that there was no violation, but for different reasons.Justice La Forest, with Sopinka and Gonthier, held that there was a violation of freedom of association (section 2(d) of the Charter) but that it was justified under section 1. He also held that the use of the union funds did not constitute forced expression, and so there was no violation of the freedom of expression.
Justice Wilson, with L’Heureux-Dube, held that there was no violation at all, and if there was it would be saved under section 1. She disagreed with La Forest by finding that the use of the union funds did have expressive content, but the payments did not imply that Lavigne supported any of the union's causes and did not prevent him from expressing his own personal views. Accordingly, there was no violation of the freedom of expression.
Justice Cory and Justice McLachlin, writing separate decisions, each held there was no violation.