Written by David Doorey, York University
UPDATE: The Bill is out. Here it is: Keeping Students in Class, 2022
I called it last night on Twitter and in my original blog post (below) published before I saw the Bill. This Bill was so obviously a Section 2(d) violation that you could tell that the government really didn’t care. So, what this means is that the new law cannot be challenged as a Section 2(d) violation. The bill, in section 13, provides that the law stands notwithstanding whether it violates the Charter or the Human Rights Code. Then the law bans strikes and imposes a contract on the education workers. Folks, this is quite something. First time a Canadian government has used the notwithstanding clause to permit violations of Charter protected fundamental labour rights.
My original explainer post published before I saw the Bill.
The Ontario government has indicated its intention to pass legislation today that (1) prohibits education workers from strike and (2) imposes a contract on the workers against their wishes.
Can the government do this? Here are some quick points to consider ahead of the legislation. I’m not referencing a bunch of case law here, but instead I’m summarizing the basic legal principles based on the case law. You might also want to check out my introduction to the Charter and the Law of Work, which you can download here. There’s also the longer treatment of the subject in my Law of Work text (Chapter 39: The Charter of Rights and Freedoms and Work”).
- Government legislation cannot violate the Charter of Rights and Freedoms.
We begin here. The Charter imposes restrictions on the actions of government. The purpose of the Charter is to protect citizens from governments that might otherwise impede the exercise by Canadians of fundamental rights and freedoms enshrined in the Charter. An important freedom protected by the Charter is ‘freedom of association’, found in Section 2(d) of the Charter.
- What does Freedom of Association mean?
Well, this question is trickier than it might sound. Here’s a very quick primer.
Firstly, we know that ‘freedom of association’ in Section 2(d) now protects both a right to collective bargainingand a right to strike. This was not always the case, but over the past 15 years, the Supreme Court of Canada has bolstered the scope of freedom of association to include a right to collective bargaining and to strike.
The next question then is what does a ‘right to collective bargaining’ and a ‘right to strike’ mean?
In a nutshell, the right to collective bargaining means that workers have a right to come together and form or join an association that is independent of the government/employer and through that association, to make collective representations that the employer must consider in good faith and engage with the association in a meaningful dialogue. That is the lesson of cases such as BC Health Services, Dunmore, andFraser.
Then, in 2015, the SCC ruled in a case called Saskatchewan Federation of Labourthat ‘freedom of association’ also protects a ‘right to strike’. The Court ruled that the right to strike is ‘the powerhouse’ of collective bargaining:
“..the ability to engage in a collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.”
The SCC decided that governments cannot prohibit workers from striking unless they perform truly essential services, which is understood as work without which there would be a threat to life, personal safety, or health. The legal test the SCC developed asked whether the prohibition of the right to strike ‘substantially interferes with a meaningful process of collective bargaining’?
- So, is the Ontario government’s bill likely to violate Section 2(d) of the Charter?
Again, I’m writing without having seen the bill. But based on the information that has leaked out and facts of the case, I really can’t see how the bill would not violate section 2(d).
Firstly, from what we are hearing, the bill will impose a complete ban on any right to strike by any worker in the bargaining unit. Therefore, there is no attempt to carefully consider which workers (if any) might be ‘essential’ in the narrow meaning ascribed to that word in constitutional. It is just a blanket prohibition.
Secondly, the law imposes this ban some 5 days before there any strike might begin. The parties still have 4 full days during which they could be bargaining, but instead the government has blown up any chance of meaningful collective bargaining by telling the union and the workers that bargaining is over and the government is imposing its own terms. It is hard to imagine government action that ‘substantially interferes’ with meaningful bargaining more than a law passed days before any possible industrial action that imposes the employer’s terms on workers.
The SCC ruled in SFL that where the right to strike is prohibited for truly essential workers, a meaningful alternative dispute resolution process must be substituted, such as interest arbitration. This is the route that usually accompanies back-to-work legislation. However, if the reports are true, the bill will bypass any meaningful dispute resolution process and impose the government’s contract terms unilaterally. Again, hard to see how that is not a violation of Section 2(d).
- But what about Section 1 of the Charter?Does that Section Save the Law?
Section 1 of the Charter permits governments to violate Charter rights when the violation is “reasonably justified in a free and democratic country”. In other words, sometimes the government can violate your Charter rights in pursuit of some higher public policy objective. To bring itself within Section 1, the Ontario government would need to prove, firstly, that the bill addresses “a pressing and substantial public concern”. Here, the government would presumably argue that the concern is ensuring education continues uninterrupted. That would probably get the government through this stage of the Section 1 test, although one government official apparently said also that the point of the bill was to send a message to other education unions that the government will not permit strikes and will impose terms on them too. If that evidence came out, the courts would not likely be impressed!
But even if the objective of the bill is pressing and substantial, the Ontario government will still probably run into problems satisfying the Section 1 “proportionality test”. That test requires the government to show that on balance, the law is carefully crafted to address the government’s pressing and substantial objective while infringing upon the Charter rights of education workers as little as possible. Here the government is probably in trouble. A bill that imposes a blanket strike prohibition on 55,000 relatively low paid school workers, regardless of what jobs they perform, days before any work stoppage is planned, and then imposes a 4-year contract on them rather than referring the dispute to neutral interest arbitration seems like an extreme overreach by the government.
- Oh, But What About the Notwithstanding Clause in the Charter? Can the government just include that and thereby ignore the Charter rights of education workers?
The so-called ‘notwithstanding clause’ in the Charter marked a trade-off to get all of the provinces to sign onto the Charter. It permits a government to temporarily (for renewable 5 year periods) violate Charter rights and freedoms. So, yes, the Ontario government could simply indicate in its bill that the law will apply notwithstanding that it would otherwise violate Section 2(d) and then the law would apply.
The belief when the Charter was passed was that governments would rarely use the notwithstanding clause, because it would be political suicide. And, indeed, it has been rarely used and never used to protect legislation violating labour rights. Saskatchewan considered using it back in the 1980s to ensure back to work legislation was not struck down, but it turned out that it was unnecessary because the Charter did not then protect a right to collective bargaining or to strike.
But Doug Ford’s Conservatives have already shown that they are willing to break with Canadian norm and use the notwithstanding clause when they threatened to invoke it to support their law gutting Toronto City Council. Given the government’s actions so far in these negotiations, and the likelihood that the new bill would violate Section 2(d), my guess is that we may actually see the notwithstanding clause appear in connection with the law.
We will know soon. Stay tuned!