Labour legislation excluded agricultural workers from the right to a union and collective bargaining. Challenged 2(d) as a violation of freedom of association.
Although the Charter traditionally does not apply to government action violating civil liberties, inaction in a legislated area which encourages or sustains the violation of fundamental freedoms can be scrutinized under s.2.
*2(d) imposes a positive obligation on the state to extend protective legislation to unprotected groups, as otherwise it substantially contributes to the violation of freedom.
*The understanding of “state action” will probably continue to evolve with Charter values
*Failure to include someone in a protective regime could actually encourage restraint on the activity the regime is designed to protect
*The underinclusive state action may actually encourage or sustain the violation of fundamental freedoms
*Distinguishes between legislative silence (no law enacted in that area, so no positive obligations) and under-inclusiveness (where a positive obligation may arise)