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Prime Minister Ford, notwithstanding | Heather MacIvor

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Heather MacIvor

This week has been reassuring for those of us worried about the health of democracy and the rule of law. In the United States, a surprisingly large proportion of voters apparently rejected Trump’s threat to the American constitutional order. More predictably, the Supreme Court decision in Dobbs motivated women to run for candidates and pro-choice initiatives (Dobbs vs. Jackson Women’s Health Org.). Abstract concerns about authoritarianism and the separation of powers are one thing. Losing a tangible constitutional right, without accountability or recourse, is something else.

Which brings us to Law on keeping students in class, 2022, LO 2022, c. 19, aka Bill 28.

Section 5 of the Act imposed new collective agreements on Canadian Union of Public Employees (CUPE) locals in the education sector. The schedule to the act (Letter of Understanding No. 13) imposed wage caps for each of the four years covered by the new agreements: 2.5% for workers earning up to $43,000 per year or $25.95 per hour, and 1.5% for those above the cutoff. Notoriously, art. 13(1) of the Act invokes the “notwithstanding clause” of s. 33(1) of Canadian Charter of Rights and Freedoms to ward off legal challenges to its constitutionality. The provision referred to “sections 2, 7 and 15” of the Charter, but its real target was the guarantee of freedom of association in s. 2(d).

Unlike freedom of religion and expression (s. 2(a) and (b), respectively), courts initially interpreted freedom of association so narrowly that it rendered s. 2d) makes almost no sense. They apparently feared that a broad interpretation would give constitutional protection to unions. The Supreme Court eventually recognized that the framers of the Charter expressly intended s. 2(d) to protect collective labor rights (Dunmore v. Ontario (Attorney General) 2001 SCC 94 at para. 37). Today, it is well settled law that a law or policy that “substantially interferes with a meaningful collective bargaining process by reducing the bargaining power of employees” violates s. 2(d) (Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1 at para. 71), as does the prohibition of otherwise legal strikes without a meaningful alternative mechanism to resolve impasses (Saskatchewan Federation of Labor v. Saskatchewan 2015 SCC 4).

Extending Charter protection to the collective bargaining process does not tie the hands of governments and legislatures. It simply requires public sector employers (including school boards) to negotiate collective agreements in good faith. When a government exercises its legislative power to unilaterally impose a collective agreement on a public sector bargaining unit, it must be prepared to go to court to justify any violation of s. 2d) under s. 1 of the Charter. The Crown must establish, on a balance of probabilities, that the law serves a pressing and substantial purpose, is rationally connected to that purpose, and limits s. 2d) as little as reasonably possible, and that its benefits outweigh any damages resulting from the breach. (R. v. Oakes, [1986] 1 SCR 103). Is it asking too much of governments to publicly explain Charter violations and present evidence of their necessity and rationality? For the Ford government, the answer seems to be yes.

Bill 28 was not the Ford government’s first experiment with s. 33. Since April 19, 2021, the Election Finances Act, RSO 1990, c. E.7 operated notwithstanding Art. 2 and 7-15 of the Charter (see art. 53.1). But this time, by invoking art. 33 struck a chord. CUPE’s attack on education workers’ rights has mobilized other unions to form an effective united front for the first time in years. Had the Ford government targeted highly paid, faceless public servants, the public reaction might have been muted. Instead, they pitted parents against the kind people who care for their children and clean their classrooms, and who often live paycheck to paycheck. The resulting outrage was quick and predictable, and the Prime Minister quickly pledged to repeal the law and return to the negotiating table.

Why did the Ford government shoot itself in the foot by invoking s. 33? The decision was probably influenced by Ontario Public Service Employees Union v. Ontario (Minister of Education) [2016] OJ No. 2109), in which Judge Thomas Lederer found that the province violated the collective bargaining rights of education unions (including CUPE) when it unilaterally imposed wage restraint collective agreements – d first through an improvised and chaotic negotiation process, then by enacting the Put students first, 2012, SO 2012, c. 11.

At the justification stage, he recognized that capping public sector wage increases during difficult economic times was a pressing and substantial objective. But he concluded, based on the record before him, that the government’s engagement with the unions was arbitrary rather than rational. Violations of s. 2(d) were exacerbated by the Wynne government’s determination to invest millions in smaller classes and full-day kindergartens, while arguing that it could only afford nominal wage increases for teachers and support staff. The judge concluded (at para. 270) that “the goal sought by Ontario could have been achieved through more targeted legislative or administrative measures and fairer and more meaningful collective bargaining”.

The OPSEU was a setback for the Ontario government, but it did not rule out the possibility of justifying future violations of s. 2(d). Quite the contrary. The central issue, both at the infringement stage and at the justification stage, was not the unilateral imposition of collective agreements or wage restrictions per se. Rather, it was the confusing and inconsistent process adopted by the government during the 2012 education sector negotiations. A more rational and transparent approach would probably have passed the constitutional test. If the Ford team misread OPSEU as requiring the use of s. 33, they have only themselves to blame for the backfire.

Finally, a word on the notwithstanding clause itself. There have been disturbingly insane contributions to the public debate on art. 33, including claims by some journalists that it allows “provinces” to circumvent the Charter (the provision expressly applies to the federal Parliament, not just legislatures). It has been argued in some quarters that the notwithstanding clause should never have been included in the Charter in the first place. All right, but the historical record is clear: without art. 33, there would be no entrenched Charter of Rights and Freedoms. Some critics have argued that s. 33 was never intended to be used preventively, an allegation that has no basis either in the text of the provision or in the leading case as to its purpose and use (the Ford v. Quebec (Attorney General) [1988] 2 SCR 712). And too many commentators have overlooked the sunsetting provision of art. 33(3), under which “notwithstanding” declarations cease to have effect after five years, unless re-enacted (or earlier repealed). The purpose of the sunset clause and the requirement for an explicit “notwithstanding” statement in s. 33(1), is to ensure that governments pay a political price for deliberately depriving people of their rights and freedoms. Premier Ford got away with it by invoking s. 33 in the Election Finances Act, so he apparently thought he could do it again. Fortunately, he was wrong.

Heather MacIvor is a Content Development Associate at LexisNexis Canada. She has worked on many Halsbury’s Laws of Canada titles, including Administrative law, constitutional law (distribution of powers), Crown, judges and courts.

The opinions expressed are those of the author and do not reflect the views of the author’s company, its customers, The lawyer’s daily life, LexisNexis Canada or one of its respective affiliates. This article is for general informational purposes and is not intended to be and should not be considered legal advice.

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