Written by David Doorey
In 2011, the Ontario Liberals enacted the Toronto Transit Commission Labour Disputes Resolution Act which prohibited strikes and lockouts by and of employees of the TTC. The key provision read:
15. (1) 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
The law substituted the right to strike/lockout with a system of binding interest arbitration.
I predicted way back in 2015, after the SCC released its decision in Saskatchewan Federation of Labour, that the TTC law would be struck down as unconstitutional. It took 8 years, but today the Ontario Superior Court of Justice struck down the law and ruled that it is invalid and unconstitutional effective immediately. In my opinion, the law clearly violated Section 2(d) freedom of association and I believed the law could not be saved by Section 1 because the strike ban overreached substantially. The current collective agreement between the ATU, Local 113 and the TTC expires in March 2024, so bargaining will commence soon under the new regime in which workers have a right to strike.
Here is the decision in ATU, Local 113 v. Ontario (2023, OSCJ).
Justice Chalmers ruled:
 For the reasons set out below, I find that the TTC Act infringes the Applicants’ right to freedom of association under s. 2(d) of the Charter because by removing the right to strike for all TTC employees, it “substantially interferes” with meaningful collective bargaining. I also find that the TTC Act is not justified or saved by s. 1 of the Charter.
Here is a quick and dirty summary of the decision
The right to strike is the “powerhouse” of collective bargaining and allows workers to bargain with their employer on a more equal footing.
The TTC argued that the substitution of binding interest arbitration meant that Section 2(d) was not infringed, since that Section does not protect a “right to strike” per se, but only a right to a neutral arbitration model where strikes are banned.
The Strike Ban Violates Section 2(d) of the Charter
The Court said the question is whether the strike ban combined with binding interest arbitration amounts to a “substantial interference” in meaningful collective bargaining. The Court ruled that it did. Firstly, the interest arbitration process substantially extended the period of time it takes to obtain a new agreement. Secondly, mandatory arbitration has lead to a decrease in member involvement within the ATU. Thirdly, mandatory arbitration affected the behaviour of the TTC’s negotiators, including causing them to be “more confrontational and aggressive” and less willing to be conciliatory. Fourthly, there was evidence of a “chilling effect” in bargaining since the law passed, meaning that the parties were less likely to reach a negotiated settlement than when there was a right to strike.
The Law is NOT Saved by Section 1 of the Charter
A law that violates Section 2(d) freedom of association might nevertheless be “saved” by Section 1 of the Charter. [Check out my Beginner’s Guide to the Charter and Work here is you want to learn more about how the Charter works].
Section 1 requires a multi-pronged test. The Court ruled as follows in regard to that test:
Is the Objective of the Strike Ban Law “Pressing and Substantial”? NO
The government argued that banning TTC strikes was “critically important”, pointing to (1) negative effects of strikes on congestion and pollution because more people will drive; (2) negative economic impact (the government relied on the entirely fictional $50 million a day figure I dished in my 2015 post); and the negative impact on equity seeking groups who depend upon the TTC for mobility.
The Court ruled that the TTC is not “an essential service” as that term is used in labour and constitutional law, which defines essential services as those for which an interruption “would endanger the life personal safety, or health of the whole or part of the population”. There was no evidence that past TTC strikes have harmed public health. There was not evidence to support a finding that TTC strikes result in “especially injurious” economic consequences (I will leave aside for now the question of whether that is the proper test here). Finally, the Court noted that the argument about equity seeking groups is post-facto the legislation, meaning that the government did not raise this as a justification of the law initially. But in any event, equity seeking people are affected by any transit disruptions but only the TTC is targeted for a strike ban.
Therefore the government was unable to satisfy even the “pressing and substantial” part of the Section 1 test. That finding alone is enough to rule the law unconstitutional, but the Court went on to consider the rest of the Section 1 test.
Is there a Rational Connection Between the Object and the Means? NO.
The Court noted that the government rushed the law through, allowing just 3 hours for legislative hearings. The government did not consider any other models. The “lack of care” in carefully designing a model that would achieve its objectives (if they were to limit increased congestion and economic harm) and instead simply banning every TTC employee from any sort of collective action led the court to find there was no rational connection between the law and the objectives.
Does the law “minimally impair” the rights of the workers? NO.
This part is easy. The law was ridiculously over broad. It banned all workers, regardless of the job they performed and when they performed it, from engaging in any sort of concerted action. The government didn’t consider less intrusive alternatives that could have allowed some industrial action while still addressing concerns about congestion and economic impact. It could have considered a rule requiring the union to provide advance warning of a strike so people could make plans for alternative transportation (look for that law to come down the pipes now by the way).
Does the law carefully balance the salutary and deleterious effects of the law? NO.
Weighing all the evidence, the harm to the workers of being entirely stripped of the right to strike is not outweighed by concerns about increased congestion and economic impacts of a strike.
So the ATU, Local 113 won a clean slate, winning on every legal point. This includes remedy. The Court refused the government’s request to delay implementation of the decision for 12 months. The current agreement ends on March 31, 2024, giving the government about 10 months to introduce a new, Charter compliant law governing bargaining disputes for TTC workers. Of course, in keeping with this government’s modus operandi, we can expect an appeal to be launched, so we are probably not done with this case. I may be retired before the case reaches the Supreme Court of Canada.
In any event, we will watch for any new law that the government chooses to introduce. As I noted, it would not surprise me for example if the government adds a requirement for transit unions (not just in Toronto, but throughout the province) to provide advance notice of a work stoppage. This notice requirement is already in effect for teachers and many other workers across the country. We’ll have to wait and see whether the government goes further than that and attempts to define a system of designated employees or other such reforms.