Patrick Groom is a partner at McMillan LLP and has been designated as a Certified Specialist in Employment Law by the Law Society of Ontario. In his bid to keep kids in class this fall, Ontario Premier Doug Ford caused an unprecedented uproar by invoking the Charter of Rights and Freedoms restriction clause for the first time in a labor dispute — but it may have been the only tool he had to keep schools open. The alternative would be to make costly concessions to the Canadian Union of Public Employees (CUPE), whose strike announcement prompted the move. CUPE’s initial demands include wage increases of 11.7 percent a year over three years, an increase not seen anywhere else in our economy, which would set unrealistic precedents for upcoming negotiations with the various teachers’ unions. Since 1982, when the Charter was enacted, there have been more than 94 cases where a federal or provincial government has used back-to-work legislation to end a labor dispute. In that 40-year period, Ontario alone has used such legislation about 25 times to end strikes and control rising labor costs, which are one of the most expensive items in any state budget. Notable examples in Ontario include college and university teacher strikes, public transit job actions, municipal and garbage worker strikes, and construction strikes. The federal government has used this legislation to restore mail service after work in 2011 and help Air Canada continue operations when workers walked out in 2012. But in the decades since the Charter came into force, the Supreme Court of Canada has also issued a series of decisions that stipulate that labor rights are in fact protected. The result is that back-to-work legislation that limits collective bargaining and prevents strikes—an important legislative tool of last resort for decades—is no longer available to put people back to work and protect our economy. CUPE to end Ontario education protests after Doug Ford says he will repeal strike ban legislation The precedent was set by a series of decisions issued in 1987 referred to as the “First Labor Trilogy”. These decisions held that section 2(d) of the Charter protects only individual rights and does not create rights to strike or collective bargaining. But over the next several decades, the Supreme Court issued decisions that gradually expanded Charter protections for collective bargaining, culminating in the “Second Labor Trilogy” in 2015. In these three decisions, the Supreme Court gave collective bargaining and the ability to achieve protection of the Charter that never existed so expressly before; a complete reversal from the legal framework established in 1987, which had clearly defined the interpretation, application and limitation of the Charter’s protections originally intended for industrial relations. The practical effects of the “Second Labor Trilogy” decisions came to light in 2016, when the Supreme Court of Justice found that Ontario had violated the rights of several education unions. In 2012, the Liberal government at the time passed Bill 115, the Putting Students First Act, to impose certain collective agreement terms negotiated with the Ontario English Catholic Teachers Association (OECTA) on the five other education unions, including CUPE . Bill 115 left certain terms to be negotiated individually with each of the other five unions, but such negotiations were quite limited. More importantly, Bill 115 preemptively blocked the ability of the five unions to strike. In enforcing the newly created strike and collective bargaining rights of the Second Labor Trilogy, the Supreme Court found that the Liberal government owed an unspecified amount of compensation to the five affected unions for breaching those rights. The final bill to the Ontario government totaled more than $212 million, with the latest settlement of $103.1 million being paid to the Ontario Federation of Elementary Teachers due in February 2022. Thanks to the Second Labor Trilogy and the Supreme Court’s 2016 damages award, organized labor’s successful extension of constitutional protections to union activities leaves governments with only one path to avoid liability when enforcing back-to-work legislation: the contrary clause in section 33 of the Charter. By invoking the extension clause for Bill 28, the Keeping Students in Classroom Act, the freedom of association in section 2(d) of the Charter will not apply to Bill 28 for five years, which is the maximum time it can apply the derogation clause unless it is renewed. Essentially it is a return to the legal framework established by the Supreme Court shortly after the adoption of the Charter. Since Bill 28 only imposes collective bargaining terms for a four-year term, CUPE, and other education unions, would likely be denied the ability to rely on the Charter to strike, close schools and seek hundreds of millions more in compensation. Some academics and politicians have called on the Ford government to amend Bill 28, remove the reference to the invalidity clause and defend its legislation in court arguing that it is justified in violating collective bargaining and strike rights. But why? The derogation clause is a practical and comprehensive solution available to any government that deems such back-to-work legislation necessary. Whether such legislation is necessary is a political question, not a legal one, so such an appeal of Bill 28 will only satisfy academics and enrich toll lawyers and stressed-out parents worried about whether the school will be open or closed at the discretion of CUPE . While this may be the first time the notwithstanding clause has been used to end a labor dispute and prevent a strike, it may not be the last. This may be a way forward for governments to use back-to-work legislation again when labor disputes pose a significant threat to the well-being of our children, our economy and our development without incurring the costs and losses of millions dollars.
