By Cole Eisen and Brian Langille
Ontario’s two public school teachers’ unions have been in a legal strike position since November 2019. They were joined by their Catholic school counterparts in December 2019, and Ontario French language school teachers in early 2020. Teachers from all four unions have voted in favour of strike action at levels ranging from 95-98 per cent support.
Yet even with strong mandates, union leaders have been slow to escalate job action. Citing little progress at the bargaining table, the Elementary Teachers Federation of Ontario announced recently that it would move to “Phase 6” of a job action protocol.This new effort will see teachers refuse to fill in for colleagues where no supply teacher is available. Without a doubt, these modest work-to-rule initiatives, alongside rotating strikes and weekend rallies, may put pressure on the Province while minimizing the impact on parents, students and individual union members. However, the teachers’ capacity to engage in continued escalation is inherently limited. If no deal is reached, the unions will eventually have to decide whether or not to call a full strike.
Union leaders must consider a variety of factors when deciding whether or not to take their members out on strike. These include the health of their strike funds, political support, and most critically, their chance of success. For many years, the threat of back to work legislation would also have been a major factor in that calculation – particularly in the public sector. But this factor should no longer be in play because of a key development in Canadian labour law: in 2015, the Supreme Court of Canada in Saskatchewan Federation of Labour(“SFL”) recognized that s. 2 (d) of the Canadian Charter of Rights and Freedoms protects the right to strike.
As with all constitutional rights and freedoms, the right to strike has two parts: (1) the definition which delineates the range of protected activities and (2) the circumstances in which a freedom can be legitimately infringed by a government. The Court in SFL asserted that it was reviving the views of Chief Justice Dickson who had dissented in the earlier Alberta Referencecase.Dickson had a very broad view of the freedom. He believed that thatthe Charterprotected, simply, the “freedom [of workers] to collectively withdraw their services.” This was because freedom of association protects, at the very least, our ability to do with others what we may all do on our own – such as not work for an employer until we agree to a contract.
The freedom articulated by Chief Justice Dickson was certainly broad, but also easy to understand and be applied by workers themselves. They have a straightforward freedom to associate to do what they were perfectly able to do as individuals – refuse to work without an agreed contract.
And on the second issue, of the circumstance in which the state may take away the freedom, the Court in SFLset out, it seemed, some very straightforward rules. SFLseemed clearly to hold that only the limitations recognized by the International Labour Organization (“ILO”) were legitimate. The ILO allows the right to strike be infringed only where the interruption of an “essential service” would endanger the life, health or personal safety of the public. While the role that teachers play in our society is of real and deep importance, it is difficult to imagine how they could be shoehorned into the ILO’s narrow definition of an essential service. In short, after SFLit seemed that Ontario’s teachers are now free to strike without the looming threat of back-to-work legislation.
Unfortunately, the current state of our law is not so clear on either the definition of the right to strike, or on the question of when it can be infringed. Our law is confused.
In SFL, the Supreme Court held that “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining.” Instead of Dickson’s free-standing right of workers without a contract to collectively withdraw their labour, the right to strike in SFL is instrumental to the process of collective bargaining. Therefore, the question for a Court when determining whether the right has been infringed is not the whether the ability of workers to withdraw their labour has been interfered with, but whether a government’s interference with the right to strike amounts to a substantial interference “with the ability of workers, acting collectively through their union, to exert meaningful influence over working conditions through a process of collective bargaining?”
That is quite a mouthful. (And it doesn’t sound much like a “fundamental freedom”.) Rather than a simple, clear cut, knowable in advance, legal right to strike which unions and workers can invoke on their own with certainty, this “test” for infringement empowers judges to, later on, dole out the right according to their views of whether “meaningful influence” has, or had not, been substantially interfered with. “Substantial interference” with “meaningful influence” as a “test” for infringement is a not a good legal idea – it is a machine designed to generate maximum legal uncertainty.
But, it will be said, at least SFLwas clear on the second issue regarding the circumstances in which the freedom can be infringed. Only in rare cases of true essential services, as defined very narrowly by the ILO, will governments be permitted to limit the right. So far, this simple idea too has turned out to be a mirage. In 2011, the Canadian Union of Postal Workers challenged legislation ordering them back-to-work following a series of rotating strikes. Applying the newly minted right established by SFL in 2016, the Ontario Superior Court of Justice found that the legislation was unconstitutional.However, on the question of whether back-to-work legislation outside the essential services context could ever be deployed, the Court declined to interpret SFL to stand for the proposition that “the legislative abrogation of the right the strike can only involve essential services, and then under restrictive circumstances”. Back-to-work legislation was, on the view of this judge, constitutionally available across the board. Including for teachers. That case was never appealed.
This uncertainty surrounding the right to strike carries enormous costs for workplace parties who are unable to properly assess the “payoff matrix” associated with a work stoppage. One option is to go on strike and simply refuse to return to work if back-to-work legislation were passed. Unlike collective agreements, the Charteris not a “work now, grieve later” system. That strategy overflows with legal risk for the reasons we have outlined, but it would certainly bring our issues to centre stage. However these issues next come up, courts should begin by really taking to heart the clear words of Chief Justice Dickson. Clarity is what we need – not more confusion.
Given this legal haze, it is no wonder that teachers would be reluctant to walk off the job. Despite the much-celebrated right to strike SFL purports to recognize, the continued possibility of back-to-work legislation, enabled but also confused by a very imprecise and uncertain freedom, complicates the decision faced by unions, employers, and their advisors. This leads to an elaborate dance of the sort we are witnessing now in Ontario where both sides are unable to say clearly what the freedom means and when it can be limited.
Brian Langille is a Professor of Law at the University of Toronto. Cole Eisen is a graduate of McGill University’s Industrial Relations program and JD Candidate at the University of Toronto.
Cole Eisen & Brian Langille, “Confusion has its costs: Ontario’s teacher bargaining and the right to strike in Canada” Canadian Law of Work Forum (March 3 2020): https://lawofwork.ca/?p=11798