Criminal Liability of Partnerships: Constitutional and Practical ...

discussed by Dickson C.J. in the Alberta Reference, supra, such activities may be collective in nature, in that they cannot be performed
by individuals acting alone. 94
Several points are worthy of note. First, the four-part test from PIPSC still applies, despite different formulations
of the test for resolving s. 2(d) claims. Second, the four-part test from PIPSC is not exhaustive, meaning that more
95
activity may be covered, even if it does not meet the PIPSC test. Third, some activities that are protected by s. 2(d)
will not be the collective equivalent of individual action. Fourth, the inquiry focuses on state discouragement of
associational activity because of its associational nature.
The first point further validates the earlier assertion (in sub-Part 1. above) that Dunmore does not limit the
protection offered by the analyses in the Alberta Reference or PIPSC. Rather, it extends them. The second point
96
confirms the need to analyze Dunmore separately from earlier jurisprudence (done in sub-Part 2. above).
The third point from this quotation avoids difficult analogies between the partnership, and its individual
equivalent, that is, the sole proprietorship. Interestingly, a business run as a sole proprietorship, unlike both a
partnership and a corporation, is not specifically listed as an “organization” under Bill C-45. There are three major
97 forms of business organization in Canada today. The fact that only two of these are specifically listed in the
definitional section of the statute is a strong indication that the third may not be an “organization”. This conclusion
is further reinforced by the catchall portion of the definition, which requires a group that holds itself out to the
public as an “association of persons”. The sole proprietorship is, by definition, not an association of persons; the
business is owned by a single individual, who is responsible for all obligations and liabilities of the business. 98
Therefore, it seems unlikely that a sole proprietorship would qualify as an “organization”. Because of this definitional
matrix, an organization cannot be the functional equivalent of the actions of an individual. This conclusion furthers
buttresses the argument made above with respect to the “qualitative differences” between the individual (the
partner) and the collective (the partnership).
The fourth point from this quotation is perhaps the most difficult issue to confront. In the case of Bill C-45, the
state is not attempting to “preclude the activity because of its associational nature”. The state is not attempting to
control the entering into partnerships, or any other associational context, for that matter.
Nonetheless, it is important to remember Dunmore’s factual background. In Dunmore, there was a specific
statutory scheme (the “first statute”) designed to govern, amongst other things, the certification of a trade union as a
collective bargaining agent. 99 Workers involved in agriculture were specifically excluded from the ability to bargain
collectively. 100 In 1994, Ontario passed a second statute 101 providing organizing rights to agricultural workers. 102 A
third statute 103 repealed the second, and removed organizational rights from workers who had such rights under the
second statute, but not the first. Workers then applied for a declaration that their Charter rights had been violated.
Therefore, the Court in Dunmore was dealing with the complete preclusion of a group of people from undertaking
the formation of an association. This element of the facts in Dunmore explains why the “single enquiry” commanded
by s. 2(d) is framed as follows: “Has the state precluded activity because of its associational nature?” However, the
framing of the question in these terms is, in my view, a result of the facts of the case that the Supreme Court was
being called upon to decide, rather than an attempt by Justice Bastarache to limit s. 2(d) to laws that specifically
preclude association by certain groups. It is also important to recall that the question asked by Justice Bastarache is
94
Supra note 66 at para. 16 [emphasis in original].
95
This is reinforced in Health Services and Support, supra note 71 at para. 22.
96
See ibid.
97
See VanDuzer supra note 8 at 7-19. VanDuzer does discuss other forms of business organization, such as the franchise (at 21), the
distributorship (at 22), the strategic alliance (at 20) and the joint venture (at 20),among others. However, it is clear that the corporation,
the partnership and the sole proprietorship are by far the three most common.
98
See VanDuzer, ibid. at 7.
99
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A [LRA].
100
Ibid.
101
Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6.
102
Dunmore, supra note 66 at para. 3.
103
Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1.