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Does Bill 115 Void Itself?

Have you read Bill 115, the controveersial law passed in Ontario that terminates collective bargaining, imposes contract terms, and prohibits teacher strikes?  That law will be challenged as a breach of Section 2(d) of the Charter, which guarantees Canadians ‘freedom of association’.   I’ll update that case as there are developments.

There’s an interesting lesson on statutory drafting in the Bill.

I'm Confused

Section 20 of the Bill, which comes after all the details of the Act, says this:

20.  This Act is repealed.

Then Section 22 says that the Act, “comes into force on a day to be named by proclamation of the Lieutenant Governor.”

The question is:  Does Section 20 repeal the Act the moment it comes into force?

Correct answers will be awarded a free copy of my next Workplace law comic staring the abusive, evil virtual Me!!!

Update:

Thanks to commenter Tierney, who answered the question as  follows:

No, the Act will not automatically repeal.

The Lieutenant Governor will proclaim sections of the Act in force (e.g. 1-19) on a certain date. However, section 20 will be proclaimed in force on a future date (i.e. 2 years after that first date, for example). They are building a housekeeping provision into the Act so that it clears itself off the books after the 2-year period ends.

Mystery solved?  Everyone satisfied with that answer?  By proclaiming the Act in parts, leaving the Kill Section (s. 20) unproclaimed, the government leaves itself flexibility to easily and quickly repeal or extend the legislation as long as it likes. Tierney will receive an autographed comic later.

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18 Responses to Does Bill 115 Void Itself?

  1. Tierney Reply

    September 11, 2012 at 2:45 pm

    No, the Act will not automatically repeal.

    The Lieutenant Governor will proclaim sections of the Act in force (e.g. 1-19) on a certain date. However, section 20 will be proclaimed in force on a future date (i.e. 2 years after that first date, for example). They are building a housekeeping provision into the Act so that it clears itself off the books after the 2-year period ends.

    • Doorey Reply

      September 11, 2012 at 2:47 pm

      Thanks Tierney. Now I see. I do need need to refresh my legislative drafting skills. Cheers, David

  2. Thomas Reply

    September 11, 2012 at 3:07 pm

    That would be the logical turn of events, and legislation often allows for different sections to come into force on different days (see for example sec. 2 of ON Bill 55). However absent legislative authority to bring different sections into force on different days (see sec. 22 of the Act), does the L.G. in Council have the authority to bring it into force gradually and not all at once?

  3. Thomas Reply

    September 11, 2012 at 3:35 pm

    Never mind. Section 8(3) of the Legislation Act, 2006 allows for the Act to come into force in parts.

  4. Chris Davidson Reply

    September 11, 2012 at 4:09 pm

    So this is where I show my ignorance of of legislative drafting. If Bill 115 is only intended to last for 2 years, why not just say “This act is repealed as of September 11, 2014″ (or whatever)? Unless legislatures just don’t do this, I can only think of 2 reasons not to make the legislation self-limiting (1) the government anticipates repealing the bill sooner than 2 years from now if the economy improves or (2) the government wants to give itself the ability to ‘extend’ the measures in the legislation for more than 2 years simply by not directing the LG to repeal it (instead of having to go through the legislative rigmarole of passing new legislation.

  5. Stephanie Reply

    September 11, 2012 at 10:53 pm

    @Chris Davidson: They want the ability to extend the measures of the legislation. As teachers, we have already been told that while right now it says “2 Years”, it has the potential for them to extend it to 3 years (or more?) without having to go through this big process again. So that’s what that means, they want the ability to extend it.

  6. Jonathon Wisnoski Reply

    September 11, 2012 at 10:56 pm

    But the question remains, why do it this way?
    Does every law that is passed need a “repealed” section?
    Or is it easer to enable a section of a law then it is to externally repeal a law? So they include statements like this when they do not plan for the law to last forever (at least sometimes)?

  7. Barb Reply

    September 12, 2012 at 5:31 pm

    Perhaps the writers of this Bill want a way out if the teachers are successful in showing that they mean business. The Bill removes the teachers’ right to negotiate a collective contract with their employers, the Boards of Education. Apparently, this breach in the bargaining is illegal, according to Ontario’s Labour Act. If the teachers are right, and choose to uphold the law when the Government is refusing to (by insisting that they be allowed to negotiate collective agreements with their employers), the Gov’t may want an escape hatch. In other words, the Government may know they are not in compliance with the Labour Act and are seeing what they can get away with while allowing themselves the opportunity to save face if need be.

  8. txwikinger Reply

    September 14, 2012 at 7:42 am

    In fact, the way bill115 is written, it may wolf in sheep’s clothes. It is possible for the government to extent the restraint period again and again and again for perpetuity, and hence all the restrictions on bargaining stay in place and the Ed Ministry has emasculated the school boards from any real decision making.

    http://drupal7.txwikinger.me.uk/why-ontario-legislative-assembly-bill-115-dangerous

  9. J B Tea Reply

    December 5, 2012 at 4:41 pm

    Now my procedural knowledge is EXTREMELY rusty. Is it possible for the cabinet to vote without the assembly sitting to repeal the bill? For example, could a minister ask the lieutenant governor to enact section 20 without support of the assembly?

  10. Paul V Reply

    December 6, 2012 at 12:36 pm

    Does the fact that the LG did not proclaim sections 22 and 23 in force have any importance?

  11. Paul Reply

    December 7, 2012 at 1:43 pm

    My father was a teacher in Ontario for 27 years. When he “retired” he used a year’s worth of sick days to extend his employment income another year. All he needed was a note from his doctor stating he was not fit to work (and he was). Today at 86, he has been collecting his pension longer then he contributed into it. He still says it was his “right’ (and it was not) to be paid for no work for that first year of retirement. What employer or tax payer should have to pay an extra years salary when an employee chooses to retire?

    • Doorey Reply

      December 7, 2012 at 4:02 pm

      Thanks Paul. Your point is that you side with the employer on this one collective agreement item relating to sick days. That’s fine, people are free to have whatever opinion they like about collective bargaining positions. Neither position is ‘right’ or ‘wrong’; it’s just opinions. Even within the teachers’ unions, there is disagreement about this term or that term. I presume your dad’s response would be, simply, that the employer bargained that system and agreed to it, so it should be held to its deal. If the employer wants to change the system, it can try to do that at the bargaining table. But the bigger question at issue in these debates today is what should happen when the employer is unable to persuade the workers to give up this right or that right though open bargaining. Should one side–the employer–be entitled to impose its will on the other side when it can’t bargain the changes it wants. Should the matter be referred to a neutral arbitration process to decide? Or should the dispute be settled by economic and political pressure in the form of strikes and lockouts. The teachers are angry because the Liberals have chosen the first option: imposing the terms the employer wants by passing a law. That tactic will always be offensive to workers, since if the employer will just impose whatever it likes at the end of bargaining, then the employees will obviously feel like the process was a sham.

  12. JodyN Reply

    December 10, 2012 at 10:33 pm

    Hi. I’m not a lawyer, but I find this sort of issue fascinating. I did some Googling and found the following information about how the law views “contracts”.
    “A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act, which resulting contract is enforceable in a court of law.
    Agreement is said to be reached when an offer capable of immediate acceptance is met with an unqualified acceptance. The parties must have the necessary capacity to contract.
    Any oral or written agreement between two parties can constitute a binding legal contract.”
    and:
    “In common law, the five key requirements for the creation of a contract are:
    1. Offer and acceptance
    2. Consideration
    3. An intention to create legal relations
    4. Legal capacity
    5. Formalities”
    Now, unless I’m mistaken, Bill 115 intends to impose a “contract” on school boards and teachers unless they negotiate one that meets the bill’s exact parameters by Dec. 31. My question is, how can this be considered a “contract” when it is imposed on both the employer (school boards) and the employees (teachers) by a third party? It seems to me that, by definition, this would not be a “contract” and as such, would not prevent legal strike actions from happening. Obviously I’m wrong, or no-one would have bothered with the bill in the first place, but please explain to me how the law works around the concept of having a third party impose something that is, by definition, agreed on by the two parties involved. Particularly when BOTH partied involved have clearly and vociferously refused the terms of the “contract” already. Thanks!

  13. RM in Oakville Reply

    December 19, 2012 at 1:45 am

    I hold the belief that public sector unions should not exist. Reason? In the private sector, unions are bargaining with mgmt with money earned in the marketplace and subject to competition. Public sector unions however are bargaining with the govt with our tax dollars (I.e. they have no money without the taxpayer) and are not subject to marketplace competition. Therefore public sector strikes should be illegal and furthermore public sector unions should not exist.

    • Doorey Reply

      December 19, 2012 at 10:10 am

      RM, it would be unconstitutional in Canada for a government to ban public sector unions. Public sector strikes are mostly always treated as unlawful these days, even if notionally there is still a right to strike. Governments almost always legislate an end to the strike, sometimes even before the strike begins. This puts Canada far outside of international labour rights standards which Canada has pledged to uphold. The question of whether the Charter of Rights and Freedoms protects a right to strike is presently on its way up the courts, the Supreme Court of Canada may have to decide soon whether governments can simply prohibit strikes and lockouts in whatever sector it likes.

  14. Pam Reply

    January 4, 2013 at 9:32 am

    Teachers provide an essential baby sitting service and thus should not be able to strike. God forbid that people should have to look after their own children for a few hours or days while teachers defend their rights!

  15. Shane Reply

    January 11, 2013 at 9:49 am

    I have a great question for you:

    I was told by both my school board and my union that I could not use my “personal day” to attend the protest: avoiding the conflict of it being legal or not, feeling better about using my own time to protest, getting paid and not losing pension contribution for the day.

    The board was saying that I could not because we were “withdrawing services” and did not have access to our contract. This would be true if it was a “strike” but I was allowed to go to work. I could have gone in and gotten paid.

    If they had disallowed my to use my personal day and I said I wanted to continue fulfilling my end of the contract would they not have been locking me out. . which would be illegal?

    I was never able to get a satisfactory answer from the school board or the union. . they just said “I can’t have my cake and eat it too.” I think I could have.

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