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70 U. Toronto Fac. L. Rev. 36 (2012)
Exiting the Freedom of Association Labyrinth: Resurrecting the Parallel Liberty Standard under 2(D) & Saving the Freedom to Strike

handle is hein.journals/utflr70 and id is 94 raw text is: EXITING THE FREEDOM OF ASSOCIATION LABYRINTH: RESURRECTING THE PARALLEL LIBERTY STANDARD UNDER 2(D) & SAVING THE FREEDOM TO STRIKE BENJAMIN OLIPHANT I. INTRODUCTION 38 II. HISTORY OF THE FREEDOM AND RIGHT TO STRIKE IN CANADA 41 i. From Common Law Freedoms to Wagner Act Model Rights 41 ii. The Trilogy 43 iii. Dunmore, BC Health & Fraser 46 III. APPUCATION OF BC HEALTH & FRASER 54 i. Application of the Law to the Right (or Freedom) to Strike 54 ii. Government action rendering a freedom 'impossible' to exercise 56 iii. 'Substantial interference' through government inaction 57 iv. Summary 60 IV. RESURRECTING THE TRILOGY'S PARALLEL UBERTY STANDARD 62 i. Arguments Against the Parallel Liberty Standard 63 ii. The Parallel Liberty Standard's Compatibility with Other Section 2 Freedoms 67 a. Largely a negative entitlement 67 b. Abstract, content neutral standard of breach 72 c. Individual freedom, not a collective right 76 V. RECONCILING DUNMORE AND BC HEALTH WITH THE PARALLEL LIBERTY APPROACH 79 i. The Dunmore Exception-Impossibility Imposing a Positive Duty on the Government 80 ii. The BC Health Exception-No Individual Analogy as a Matter of Fact 83 Vl. CONCLUSION 85 The author would like to extend thanks to Professor Brian Langille, Steven Barrett and Ethan Poskanzer for their helpful comments on earlier drafts of this paper, as well as to the University of Toronto Faculty of Law Review team for its excellent editorial assistance. UNIVERSITY OF TORONTO FACULTY OF LAW REVIEW VOL. 70 (2)

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