A provision in the Quebec Construction Act has been sanctioned by the Supreme Court of Canada, even though it may well violate the Charter of Rights and Freedoms.
The appellants in the case were contractors, real estate promoters and construction workers. They had been charged with hiring employees who didn’t have the required competency certificates to work on construction projects.
The appellants argued that, because the workers could not obtain the certificates without becoming members of a union, this requirement was unconstitutional. It violated their right
to associate – the negative counterpart of the guarantee of freedom of association contained in the Charter.
By the narrowest of margins (five out of nine judges), the Supreme Court dismissed the appeal.
There was no unanimity, however, even amongst the five majority judges. Madame Justice L’Heureux-Dubé disagreed that there even was a right not to associate. The remaining four majority judges accepted that this right was encompassed in the Charter, but either felt that the Construction Act did not violate this right or that it was a reasonable limitation on it, given the troubled history of labour relations in the Quebec construction industry.
The court's lack of accord limits the decision's value as a precedent.