The TTC Strike Ban Legislation

The Liberal government introduced the controversial ban on TTC strikes yesterday at the behest of Mayor Ford.   In doing so, the Liberals have opted to try and appease Toronto voters short of an upcoming election rather than protect the support it has mostly enjoyed the labour movement since coming to power.  Already the Ontario Federation of Labour is planning a “Day of Protest”.   As I’ve noted before, the labour movement sees this legislation as part of a reactionary anti-union platform of the Toronto Mayor, and there is anger that the Liberals would help push forward that agenda.  I’d expect the NDP to raise objections along these lines during the legislative debates.
Here is the Minister of Labour’s (Charles Sousa) introductory speech. And here is the Bill  that was introduced, which the government named Bill 150, An Act to provide for the resolution of labour disputes involving the Toronto Transit Commission. Section 15 says this:

Despite anything in the Labour Relations Act, 1995, employees to whom this Act applies shall not strike and the employer shall not lock them out.

Instead, any disputes not resolved in bargaining will go to an interest arbitrator who will listen to the parties’ submissions and then impose a collective agreement.  So, once this legislation passes, in the weird and whacky world of Toronto, a bus driver won’t be able to strike, but an ambulance driver will.  Go figure.
The Legal Battles Ahead?
Expect the International Labour Organization to issue a decision finding that this legislation violates Canada’s legal obligations under international human rights laws, since there is no doubt that a ban on transit workers’ right to strike violates ILO Convention 87, which Canada has ratified.  The ILO has already singled out, chastised, and expressed concern about Canada’s dismal compliance record with international labour rights, and this legislation will further harm Canada’s reputation and credibility at the ILO.
The next question is whether the unions will decide to launch a Charter challenge, asking the Courts to reconsider the 1987 Supreme Court decision that “freedom of association” does not include a right to strike.   The Supreme Court recently ruled in B.C. Health Services that it was wrong when it ruled back then that FA does not include a right to collective bargaining, and it also said that FA must protect at least the level of rights afforded by Convention 87.  If that is true, then FA must also include a right to strike.  Will the unions decide to bring this argument forward now?
If the Charter protects a right to strike, then in my opinion, this legislation would not be saved by Section 1. It is way too broad to satisfy the minimum impairment test in Section 1 of the Charter. It bans ALL strikes, by ANYemployee of the TTC, at ALL times!  The government’s argument is that a strike costs the “city of Toronto $50 million a day” [how many times have you heard that number recently…see my entry on this mysterious figure].   It’s a purely economic argument, and government concedes that most of the lost money is associated with people having difficulty getting to and from work at rush hour.
Why not use the “essential services” model we use for far more essential workers, like ambulance drivers, and allow for some TTC workers to be declared essential, enough to provide  a basic level of service, but allow others to strike.  This model has worked for transit workers in Quebec.  This is just one obvious possibility that springs to mine when thinking about a model that would address the government’s purely economic justification for this law, but there are no others.  If you are concerned about transit service for disabled people, then declare all special services for the disabled essential.
So we will watch if the unions decide to bring this case forward as a test to see if the Supreme Court still thinks governments should be able to ban strikes whenever it is politically popular to do so.
Other links:
Marcus Gee on why banning TTC strikes is a bad idea.
Toronto Star on why Province Should Ban TTC Right to Strike