October 27, 2015
Will the Ban on TTC Strikes Be Ruled Unconstitutional?
The union that represents TTC workers wants a right to strike again and it’s going to court to win it back. See the Toronto Star story here.
The Legal Background: How the Right to Strike Became a Live Issue
This is the latest in a long line of cases challenging legislation that severely curtails the rights of public sector workers
to collective bargaining and the right to strike. The challenges are filed under Section 2(d) of the Charter of Rights and Freedoms, which guarantees Canadians “freedom of association”. By way of quick review: in 1987, the Supreme Court of Canada (SCC) ruled that “freedom of association” does NOT protect a right to collective bargaining or to strike. That meant governments were free to impose any restrictions on those rights they liked. However, in a series of decisions in the past decade, the SCC reversed itself. First, in the 2007 decision in B.C. Health Services and the 2008 decision in Fraser v. Ontario, the Court ruled that Section 2(d) DOES protect a limited right to collective bargaining after all. Second, in the 2015 decision in Saskatchewan Federation of Labour v. Saskatchewan, the Court ruled that the Charter also protects a “right to strike”.
I summarized the Saskatchewan decision in an earlier post. The SCC ruled that a right to strike is essential to a meaningful process of collective bargaining. Justice Abella, who wrote the majority ruling, summarized the legal test as follows:
Abella J. in the Saskatchewan decision:
The test, then, is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining. The PSESA demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1 of the Charter
That ruling brings all statutes that completely ban the right to strike into play, rendering them constitutionally suspect. One such piece of legislation is the Act to Provide for the Resolution of Labour Disputes involving the TTC, enacted in 2011 by the Ontario Liberal government. Section 15 of that Act bans all strikes by any TTC employee, regardless of what job that employee performs, from the subway and bus drivers, to ticket collectors, to the folks who sweep subway platforms, answer phones, do escalator maintenance, or paint walls:
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
When that legislation was passed, there was no constitutional right to strike. Now there is. Section 15, on its face, bans any right to strike to all TTC employees, with no exceptions. That sure looks like a violation of Section 2(d), considering Justice Abella’s test, doesn’t it?
Would a Complete Ban on all TTC Strikes Be “Saved by Section 1” of the Charter?
If so, then the issue will fall on whether the Ontario government can justify the complete ban on any right to strike by all TTC employees under Section 1 of the Charter. I have explained how Section 1 works in my paper “The Charter and the Law of Work: A Beginner’s Guide” for those interested in learning more [I need to update that paper!].
In the Saskatchewan decision, the legislation banning the right of health care workers to strike was not saved by Section 1. The union conceded in that case that at least some of the workers involved performed essential services that were vital to protecting the health and safety of citizens. The issue in Saskatchewan was whether the law was overly broad in effectively banning the right to strike of people who did not provide an essential service related to public health. The Court ruled that the law went too far in restricting the constitutional right to strike, and hence was “not carefully tailored so that rights are impaired no more than necessary”. The law was struck down as unconstitutional.
In the TTC case, there is a real question of whether the services at issue are “essential” at all. Is public transit “essential”? It is not, according to international labour standards on the right to strike. This is very important, because in Saskatchewan, the SCC agreed with the narrow definition of “essential services” in international law. Here is a key passage from Saskatchewan in which Abella agrees with and cites this earlier passage penned by Chief Justice Dickson:
It is . . . necessary to define “essential services” in a manner consistent with the justificatory standards set out in s. 1 . The logic of s. 1 in the present circumstances requires that an essential service be one the interruption of which would threaten serious harm to the general public or to a part of the population. In the context of an argument relating to harm of a non-economic nature I find the decisions of the Freedom of Association Committee of the I.L.O. to be helpful and persuasive. These decisions have consistently defined an essential service as a service “whose interruption would endanger the life, personal safety or health of the whole or part of the population” (Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the I.L.O., supra). In my view, and without attempting an exhaustive list, persons essential to the maintenance and administration of the rule of law and national security would also be included within the ambit of essential services. Mere inconvenience to members of the public does not fall within the ambit of the essential services justification for abrogating the freedom to strike.
Justice Abella followed that passage with this comment: “In some circumstances, the public may well be deprived of a service as a result of strike action without being deprived of any essential service at all that would justifiably limit the ability to strike during negotiations.”
All of this suggests that there is a real live issue about whether the courts will accept the government’s claim that public transit is an essential service that could justify a complete ban on the right to strike for any TTC employees. Is there really a serious threat to public health and safety of Torontonians when subways and buses temporarily cease? Keep in mind that the government permitted transit strikes to drag on for months in Vaughan and Ottawa. It is only TTC employees who cannot strike in Ontario, not all transit workers. This suggests that the government will argue not that the TTC is essential to public safety, but that it is essential in an economic sense, and that the need to ban strikes applies only in Toronto, since Toronto’s economy is real big, whereas the economies of Vaughan and Ottawa, not so much. Therefore, an interesting and important issue in the TTC case will be whether an important “economic” activity can ever amount to an “essential service” justifying a ban on the constitutional right to strike.
The Ontario government will need to argue that the definition of an essential service, and therefore the scope of Charter protected rights, can be reduced to a mathematical formula. Since all strikes have some economic impact (that is their point after all), how does a court measure when economic impact crosses the constitutional line and becomes a threat to an essential service?
What evidence will the government present to the court on the “economic” harm caused by a TTC strike? Good question. When the Liberals passed the law, they justified it by citing the figure that a one day strike at the TTC costs Toronto’s economy “$50 million”. They took that number from Mayor Rob Ford, who repeated it for months in his soundbites. I don’t know if the Liberals did their own independent study. If they did, I didn’t see them refer to it at any time. I wrote a short blurb about the fictional $50 million figure number back in 2011 called “A TTC Strike Costs the City 50 MILLION DOLLARS A DAY!! And Other Myths...” My point was that the number was pulled out of the sky by city bureaucrats (funny enough, in a report recommending that the TTC NOT be made an essential service), and then repeated ad nausea as if were a real number based on rigorous calculations. Good luck trying to persuade the Supreme Court using that sort of voodoo economics.
The $50 million figure was a rough guess of the reduction of “output of goods and services” in a day when the TTC wasn’t functioning. The city staff made a haphazard assumption that output in the city would decrease by about 10 percent because of the hassle of getting to work caused by a strike. But even if this was true, and even if an economic service can be “essential” in a constitutional sense, can a service that affects only 10 percent of a giant economy, for a limited period of time, be essential? Another good question.
However, leaving aside the problems associated with trying to use questionable mathematics to calculate whether a service is essential, almost certainly the strike ban in the TTC legislation is over broad, like that in the Saskatchewan decision. Is it really necessary to abolish EVERY TTC employee’s right to strike in order to protect 10 percent of Toronto’s economy that will be affected by a strike? What steps were taken by the Liberals to weigh their concerns about economic impacts against the constitutional right to strike of TTC employees? Obviously none, perhaps understandably so given that when the law was enacted, there was no constitutional right to strike.
The one saving grace for the Liberals is that their strike ban law includes an interest arbitration substitution. Justice Abella wrote in Saskatchewan:
Abella J.: Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations.
The Liberals will no doubt argue that their law is saved by the inclusion of an interest arbitration provision, the equivalent of which did not exist in the Saskatchewan legislation that was found to be unconstitutional. This argument raises the question of whether a government can substitute a right to strike for interest arbitration for policy reasons. A related issue will be, what constitutes a “meaningful” and fair dispute resolution process. The TTC law substitutes interest arbitration for a right to strike, but also includes a set of criteria that the arbitrator must consider in shaping his or her award. Section 10 provides:
10(2) In making an award, the arbitrator shall take into consideration all factors it considers relevant, including the following criteria:
1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and the City of Toronto.
4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997.
Unions argue that these criteria tend to favour the government employer’s interests over the economic interests of workers. For example, it is the government that decides funding and taxation levels and therefore the TTC’s “ability to pay”. If the Liberals choose to introduce corporate tax cuts, and to offset the loss of revenue, directly or indirectly reduce funding to public transit, then they will have reduced the TTC’s ability to pay. For obvious reasons, unions see this type of criteria in interest arbitration statutes as stacking the cards against them. Will the SCC have anything to say about criteria of this sort?
Lots of interesting questions in this case. We will follow it as it proceeds through the courts.
What do you think?
Will the courts strike down the Act to Provide for the Resolution of Labour Disputes involving the TTC?
Do you think the courts will accept that potential harm to the economy qualifies as an “essential service” justifying a prohibition on the constitutional rights of the workers who provide that service? How should courts measure “economic essentiality”?
Reference to Law of Work text:
The application of the Charter of Rights and Freedoms to work-related issues in dealt with in two chapters in the Law of Work:
Chapter 20: The Charter of Rights and Freedoms and Regulatory Standards
Chapter __: The Charter of Rights and Freedoms and Collective Bargaining (coming in 2016)