Bob Kinnear, President of the ATU, made the case against the Liberals’ TTC strike ban yesterday at the Committee 
meetings on Bill 150. My blog entry called ” A TTC Strike Costs Toronto $50 Million a Day, and other myths…” was front and centre in his submissions.
Here are Kinnear’s submissions.
Kinnear emphasized my point that the $50 million figure is hardly a “fact”, though the politicians and media are treating it as such, and the government was citing it as reason why it needs to ban TTC strikes. None of the people citing this magical figure has a clue how it was calculated. I asked the City for the “study” that is the source of the magical number weeks ago, and have been getting the runaround, and now the silent treatment. Either they can’t find it, or they don’t want to give it to me. The government’s spokesperson told the media that the Liberals just accepted the number that Rob Ford gave them, as noted in this Globe and Mail piece:
“These are not our numbers. We never said that,” he said. “That’s what the city told us.”
None of this was going to change the government’s mind, of course. This law is a response to voters who have told McGuinty that they don’t want TTC strikes. It was never about how much money a strike “costs the City”, so the Liberals should really just shut up about that.
I wonder if the government will include the magical mystical $50 million figure in its response to the complaint to the International Labour Organization that will be filed shortly after the law comes into effect. That ILO complaint will, without doubt, result in a finding that Ontario has violated the TTC workers’ internationally recognized right to strike. I’ll let you know if the $50 million number makes it all the way to Geneva.
If I were arguing against Bill 150 in a submission, here’s what I would add from a legal perspective.
First, I would note that TTC strikes are very rare, that transit workers around the democratic world have legal rights to strike, and that there is no crisis at stake here. This is a politically created hot button issue, not a serious threat to public safety or even the economic climate of Ontario.
Then I would point out that although the Supreme Court of Canada has not yet ruled that there is a Constitutional right to strike, it has ruled that there is a Constitutional right to collective bargaining. In doing so, the Court said (in B.C. Health Services, Para. 79) that the Charter’s protection of Freedom of Association must provide “at least the level of protection” as afforded by ILO Convention 87. Convention 87 has been interpreted to include a robust right to strike, subject only to limitations necessary to protect human health and safety. Bus drivers obviously do not fall into that category. Therefore, unless the SCC backtracks from its very clear statement in B.C. Health Services, we should anticipate the Court recognizing soon some limitation on a government’s right to ban strikes whenever it is politically expedient to do so.
The Supreme Court went further in B.C. Health Services. It reminded governments that labour “policy itself should reflect Charter rights and values” (B.C. Health Services, para. 26). One value enshrined in Charter jurisprudence is the notion that legislation, even when pursuing a pressing policy objective, should restrict rights as “little as possible” in order to achieve the government’s pressing objective.
What is the pressing objective of a transit ban? Good question. I presume it would be to ensure that people can get to work without undue irritation and delay. If that is it, then the government would argue that transit service is needed, at least during those hours when most people go to work and back. No matter how you characterize the pressing need for transit, though, Bill 150 restricts transit workers’ rights WAY further than is necessary to achieve that objective.
For example, it restricts the right of a TTC worker who changes the garbage bags from striking. It restricts all maintenance workers and mechanics from striking, even those who work in a depot fixing off-duty trains and buses. How is changing the newspaper recycling bags at subway stations necessary to ensure Torontians can easily get to work (assuming that is a pressing policy objective)?
Is it necessary to save Toronto’s economy for trains and buses to run between 10 p.m. and 1 a.m.? When I lived in London, England, tube drivers used to strike a certain times of the day, but operate at other times, and everyone knew what was coming. The same thing has happened in Montreal. London and Montreal have survived.
In short, absolutely no consideration has gone into exploring whether there is a way to restrict TTC strikes in a way that protects whatever pressing objective the government is relying on to justify this law, but that also does not completely eliminate the right of all TTC employees to exercise a right to strike.
Bill 150 takes the easy road of a complete ban on legal rights, without bothering to engage in the sort of fine balancing of rights and pressing societal needs that the Charter was supposed to encourage. Who knows, perhaps these sorts of arguments may make it before a Court in the not so distant future.
What do you think?
Should the Liberals pause and explore whether there is a more thoughtful way to balance the competing desire of Toronotians for TTC ?
Or is a complete ban on all strikes, by all TTC workers, at all times the only acceptable solution?