By David Doorey, York University
A legal strike by TTC employees represented by the Amalgamated Transit Union, Local 113 could begin overnight. In all probability, that strike will not last long because the Conservative government will intervene and pass back-to-work legislation that sends the bargaining dispute to binding arbitration. Although there is always the possibility that the ATU members will “pull a CUPE” and simply refuse to refuse to return to work in defiance of back-to-work legislation. So what will happen over the coming days is not entirely clear. In this quick post, I’ll review the possibilities.
Background
This would be the first work stoppage at the TTC since 2008, when a strike was ended after just 2 days by back-to-work legislation. TTC strikes are rare. Since 1990, just 13 days have been lost due to work stoppages. However, given the level of disruption to Torontonians, any potential work stoppage garners considerable attention. Following the 2008 strike, the Liberal government in Ontario introduced the Toronto Transit Commission Labour Dispute Resolution Act, which banned work stoppages and referred any bargaining disputes to binding interest arbitration.
That law was struck down as unconstitutional by the Ontario Superior Court of Justice in 2023 because it violated Section 2(d) of the Charter (freedom of association) and the constitutional right to strike. That decision was recently affirmed by the Ontario Court of Appeal.
The courts confirmed that any law that bans all strikes outright for non-essential workers will violate Section 2(d) and must therefore be “saved” by Section 1 of the Charter, which permits carefully crafted laws that violate Charter rights and freedoms in narrow circumstances to protect a pressing, substantial public interest. The law banning all TTC strikes was not saved by Section 1 because it was so obviously over broad. It made no attempt to tailor a right to strike that nevertheless protects true essential services for example, meaning services without which there could be serious harm done to people. (Note that the ATU has already promised to continue Wheel-Trans services during the strike). It just took a sledge hammer to the right to strike, banning all strikes by all employees at all times. The court also noted that strikes are not banned by statute in the case of any other transit system in Canada: just the TTC.
Notably, the Court of Appeal also confirmed that simply substituting interest arbitration for the right to strike does not satisfy Section 2(d). Therefore, if the Conservatives introduce back to work legislation to end a TTC strike, that law will probably violate Section 2(d) of the Charter. Moreover, if that legislation is passed almost immediately once the strike begins, it is highly unlikely it would be “saved by Section 1”, considering what the Court of Appeal said about the importance of the right to strike and the inadequacy of simply substituting arbitration.
Therefore, we can safely map out the following potential scenarios that would end a TTC strike.
Option 1: The Parties Reach a Voluntary Settlement
This is obviously the preferred option of everyone. However, given news reports that the parties remain very far apart, it seems unlikely that a deal will be reached before midnight tonight. But we will see. The parties might also reach a voluntary settlement after a strike commences. Perhaps the government threatens back to work legislation and one or both parties is sufficiently concerned about that prospect that they find common ground. I would be surprised though if the government permits the strike to drag into next week, so the window for a settlement may be short.
Option 2: The Government Introduces Back to Work Legislation and Imposes a Collective Agreement.
This is the crazy option that the Ford government took in 2022 with the CUPE education workers in the disastrous Keeping Students in Class Act . The government was forced to repeal that legislation and return to the bargaining table after unions threatened a mass general strike. I’d be shocked if the Tories attempt to impose a collective agreement. The more likely option is Option 3.
Option 3: The Government Introduces Back to Work Legislation and Refers the Dispute to Binding Interest Arbitration
The most likely outcome barring a voluntary settlement is that the government reconvenes parliament to introduce emergency back to work legislation, maybe as early as tomorrow or over the weekend. That legislation would refer the dispute to binding arbitration. The NDP and/or Liberals may stall the passage of the law, but that is not certain and in any event the Conservatives have a majority to push it through. In 2008, the Liberals introduced Bill 66 ending the TTC strike with unanimous support across all parties.
Option 3 approach then presents a number of possible avenues/responses after the law is enacted.
Option 3(A): The ATU/Workers Return to Work and the Arbitration Runs Its Course
Historically, Canadian unions have mostly accepted back to work legislation and shifted to arbitration mode with the work stoppage behind them. That could happen here and that would certainly be the wish of the government.
Option 3(B): The ATU/Workers Return to Work and Launch a Charter Challenge Against the Back to Work Legislation
There is a very strong chance that the ATU will not simply accept a government move to abolish the right to strike given that the union just spent years in Charter litigation to get the ban on TTC strikes ruled unconstitutional. So almost certainly back to work legislation would be challenged and, as noted above, there is a very strong chance the legislation would eventually be ruled unconstitutional. However, that litigation could take years to be resolved. In the meantime, an arbitrator will issue an award and impose a collective agreement.
A decision years from now ruling that the back to work legislation was unlawful will not lead to a re-opening of the collective agreement and the reinstatement of the workers’ right to strike. More likely, the ATU would argue that had the workers not be ordered back to work by the illegal law, the workers would have eventually achieved more through negotiations than the arbitrator ordered. That is a challenging argument to win though because the arbitrator will almost certainly refer to other “freely negotiated” agreements when he/she issues the arbitration award. It’s also possible that a court could order the Ontario government to pay damages as a deterrent to enacting unconstitutional laws. On the whole though, although a Charter challenge against back to work legislation has a high probability of success, it is less clear how that win will translate into any great level of remedy for the ATU and its workers when all is said and done. Maybe years from now the workers receive a lump sum payment to compensate them for the loss of their constitutional right to strike.
Option 3(C): The Government Introduces Back to Work Legislation and Invokes the Notwithstanding Clause
The almost certain possibility that the ATU will launch a Charter challenge against back to work legislation will no doubt at least provoke a conservation in government circles about whether to (once again) include the notwithstanding clause (NWC) in the back to work legislation. Recall that the NWC permits the government to violate Charter rights and freedoms for renewable periods of 5 years. In the case of back to work legislation, the legislation would be moot before that 5 years passes. The effect of including the NWC in back to work legislation would be that ATU cannot challenge the law as a violation of Section 2(d). I explain all of this in a video I made during the government’s failed response to the CUPE dispute in 2022.
Would the Conservatives use the NWC again? Given that the last time they tried that the Canadian labour movement mobilized and threatened to shut down the province, I’m leaning towards no. On the other hand, conservatives in Canada have recently mobilized themselves around the idea that the long-standing norm against using the NWC should be retired so that governments can ignore the Charter whenever they feel like it (see Poilievre’s fondness for the NWC). So who really knows.
On this point, while the Canadian labour movement drew a line in the sand on the use of the NWC in labour law statutes, it is less clear whether unions would respond in such a coordinated and militant manner in response to what we might call “run of the mill” back to work legislation that refers a public sector bargaining dispute to arbitration. Would there be a threatened general strike and cross-province “Days of Action” if the Conservatives refer the TTC dispute to arbitration? A question to watch.
Option 3(D): The ATU/Workers REFUSE to Return to Work and Defy the Back to Work Legislation
Of course, as noted at the outset, there’s also the possibility that the ATU and its members defy any back to work legislation and refuse to return to work. That is what CUPE education workers did in 2022 and their actions garnered mass support from other Canadian unions. But that CUPE legislation was especially draconian. It imposed a contract (rather than send the dispute to an arbitrator), banned strikes, and invoked the NWC. As I’ve noted, I’d be very surprised if the Conservatives try that route again. My guess is that we’d see back to work legislation that refers the dispute to arbitration, similar to what we see regularly in other public sector work stoppages (including prior TTC strikes) and without the NWC.
To be clear, refusing to comply with a legislative order to end a strike exposing the strikers and the ATU to penalties, including huge fines and even possibly discipline. The BCTF was fined $500,000 when its members defied a law requiring them to end a strike and return to work. Therefore, defying the legislation is a risky strategy. However, it is also not difficult to imagine that response in these times.
That’s my quick run down of the likely scenarios that could play out in the coming days. Did I miss any? Which option do you believe is most likely?
DD