By David Doorey, York University (November 29 2022)
Another week, another loss for the Doug Ford Conservatives and their ongoing attack on pubic sector workers. In a decision released this afternoon, the Superior Court of Justice ruled that #Bill124 violated public sector employees’ freedom of association and that the infringement could not be saved by Section 1 of the Charter. It will take me some time to get to a close read the decision, but here it is if you’d like to read it yourself:
The Court provides a nice summary of the decision at the outset. Here are the key conclusions.
The Court declared Bill 124 unconstitutional and reserved on remedy until after a separate hearing on the matter is concluded. Presumably, the unions will ask for a lot money, like they did when #Bill115 was similarly struck down by the courts. Ontario ended up paying well over $100 million to teachers in damages.
We will await the government’s response. My guess is that they will appeal in order to kick the ball down the road a while. Who knows, by the time the appeals are exhausted, it may be the NDP’s problem! Using the ‘notwithstanding clause’ is another option, but I have a feeling that the government might think twice about doing that again given how things went for them earlier this month with Bill 28.
Oh, and let’s watch what impact this has on ongoing and future collective bargaining in the broader public sector, where wages have been capped by an unconstitutional law. You bet that workers are going to be looking for a big catch up given the high rates of inflation they’ve endured during Bill 124’s life span.
Finally, it is worth noting that it will likely take years before the employees receive a dime. And that assumes that any appeal(s) fails AND that at the end of it all the government does not just pull out the ‘notwithstanding’ clause again. Bill 115 was ruled unconstitutional in 2016 and the government did not appeal. Even so, the final payouts of damages to teachers will not occur until spring of 2023.
One last point: all of this constitutional wrangling is a bit of a game. The Conservative government, like the Liberal government before it when it enacted Bill 115, likely had a pretty good idea that Bill 124 would eventually be ruled unconstitutional. They have smart lawyers advising them. However, governments engage in a cost-benefit analysis. The dirty truth is that governments can save money by violating your Charter rights. The politicians are playing the long game.
Take Bill 115. The teachers eventually won their Charter challenge and years later got damages. Those damages amount to $2000-$3000 per teacher on average or thereabouts. Cost of the government of over $100 million in total. I don’t have the final tally in front of me. However, that money has (notionally) been sitting in the coffers for a decade and, more importantly, a lump sum damages payment is a one-time cost to the government. The alternative if the government had not legislated wages would probably have been an increase to base wages for all of the workers. In most cases, employees are better off with a base wage increase than a lump sum payout of a couple of grand. That’s because future wage increases are compounded. If I had received a 3% wage increase in 2016 and then if I get another 3% wage increase in 2020, I’m getting a raise on my earlier raise. You follow?
All of this is true with regards to Bill 124. Workers who had their wage increases capped at 1% in 2019 would be way better off having received a 3% raise in 2019 and then a new raise in 2024, then they will be receiving a few grand in 2029. Obviously. So the government is saving money by violating the Charter, unless the court orders a retroactive wage increase based on what increase the unions would likely have bargained in the absence of Bill 124. So we will watch the remedy part of this saga closely. That is, if I am still around when it is ultimately decided.
Stay tuned ….