Can anyone block Ontario legislation designed to impose a contract on education workers?
Isaac Callan and Colin D'Mello -
Ontario Premier Doug Ford and members of province's legislature pay tribute to Queen Elizabeth in Toronto on Wednesday September 14, 2022.
Tensions flare over Ontario’s plan to use notwithstanding clause to quash education strike
The Canadian Civil Liberties Association is calling Bill 28 a “catastrophe” for Canadian rights and freedoms and vows to fight the legislation in court.
The Doug Ford government's decision to invoke the rarely used notwithstanding clause to impose a contract on education workers in Ontario has raised eyebrows and ire from as far away as the federal government.
Canada's justice minister and prime minister both condemned the move, and an emergency debate was demanded on Parliament Hill.
But it remains unclear if anyone can — or will — block the province's new anti-strike legislation.
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As unionized education workers across Ontario prepare to strike from Friday "until further notice" over broken contract negotiations, the province is rushing through legislation that will outlaw the strike and impose a contract on them.
The proposed bill — Keeping Students in Class Act — relies on the notwithstanding clause to block challenges from courts and tribunals.
The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for a five-year term.
In the Ford government's new legislation, the clause is used to protect the bill from potential legal challenges — explicitly overriding Canadian human rights laws.
"The Act is declared to operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and the Act will apply despite the Human Rights Code," the bill's explanatory note says.
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In government talking points obtained by Global News, Ontario's minister of education is instructed to say that the province does "not take this step lightly."
"We believe the Act, if passed, is justified and would not violate the Charter or Human Rights Code," one bullet point reads, despite the wording of the proposed law.
The talking points argue that the province's hand "has been forced."
"What (Doug Ford) is doing — I think everybody would agree — is something he can do," Andrew McDougall, an assistant professor with the University of Toronto Scarborough, told Global News.
He noted the notwithstanding clause was generally used in "the most extreme situations."
"A lot of people would, I think, say that this particular situation falls short of that and it's an inappropriate use of it even though he might technically be allowed to use it."
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Canada's justice minister is among those who say a standoff with CUPE does not meet the threshold the clause was designed for.
David Lametti indicated on Tuesday the federal government has the option to challenge Ontario in court but has yet to make a decision on next steps.
“The use of the notwithstanding clause is very serious. It de facto means that people’s rights are being infringed and it’s being justified,” Lametti said.
Canadian Prime Minister Justin Trudeau called its use "wrong."
However, the Ministry of Justice would not explain or elaborate on the potential to intervene — either if it would act or how that might work.
In response to questions from Global News, a spokesperson for the Ministry of Justice condemned Ontario's use of the clause and said the province "must explain" its actions but did not lay out any steps Ottawa might take.
"I will be waiting with great interest to find out if (the minister) comes up with any particular legal argument in the next couple of days," McDougall said.
One option that is theoretically available to the government is the disallowance clause of the constitution. It allows the federal government to overrule and throw out a provincial law within two years of its creation.
Carissima Mathen, a professor with the University of Ottawa's law program, said the clause is not a realistic option for the government.
"It would probably lead to a serious rupture in federal-provincial relations that would be destabilizing for the entire country," she said.
"It is understandable that people would be looking to unorthodox methods to stem a disturbing trend of treating the Charter of Rights as an inconvenience rather than one of Canada’s defining features. Unfortunately, there is not much that the federal government, acting alone, can do about that."
The Prime Minister's Office said Wednesday night that Trudeau and Doug Ford had spoken about Ontario's use of the notwithstanding clause.
A statement said Trudeau "was clear that the preemptive use of the Canadian Charter of Rights and Freedoms’ notwithstanding clause is wrong and inappropriate."
Mathen said the federal government could refer the question of limits to the notwithstanding clause to the Supreme Court of Canada for an advisory opinion or even pass its own legislation "that imposes limits on use of the clause at the federal level, and urge provinces to do the same."
The Canadian Civil Liberties Association — which acknowledges that little can be done to force the Ford government to change course — also indicated Ottawa should consider reopening the constitution to remove the availability of the clause.
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In Ottawa on Wednesday, the NDP sought and was denied an emergency debate on events at Queen's Park.
“There is a clear interest for this parliament to debate the trampling of constitutional rights and the implication it will have for everyone in Ontario and across the country," stated a letter to the Speaker, signed by NDP MP Matthew Green.
The NDP also introduced an unsuccessful unanimous consent motion Wednesday asking the House of Commons to “reject any intervention aimed at restricting the collective rights of workers to freely negotiate their working conditions.”
Ontario's proposed bill also sets out to limit the ability of tribunals and arbitrators to step in.
It says that an arbitrator, mediator-arbitrator, arbitration board or any administrative tribunal will not be able to make any decisions around the provisions within the proposed law or determine if it flies in the face of the Human Rights Code.
The same parties will not be able to decide if the actions of the government or its ministers are "constitutional or ... in conflict with the Human Rights Code."
The Ontario Human Rights Commission — the province's human rights watchdog — told Global News it had "no comments."
— with files from Global News' Rachel Gilmore
'Dangerous' and 'draconian': Labour experts pan Ontario's notwithstanding clause use
TORONTO — Ontario's pre-emptive use of the notwithstanding clause in legislation intended to prevent a strike by education workers is a dangerous and draconian move that could have implications for labour negotiations across the country, experts say.
The Progressive Conservative government passed legislation Thursday that imposes a contract on education workers with the Canadian Union of Public Employees and bans them from striking. The legislation says the government intends to invoke the notwithstanding clause to keep the eventual law in force despite any constitutional challenges.
It's the first time in Ontario's history, and just the second time in Canadian history, that the controversial clause -- which allows the legislature to override parts of the Canadian Charter of Rights and Freedoms for a five-year term --has been used in back-to-work legislation.
"This intervention is incredibly dangerous because it is basically the government saying, we know we are violating these workers' constitutional rights, and we're going to do it anyways," said Stephanie Ross, the director of McMaster University's school of labour studies.
The use of the notwithstanding clause has roiled unions and shocked observers across the country, who fear it could embolden other governments to quash one of the most powerful pieces of leverage a union has in negotiations, without constitutional recourse.
The move not only has significant implications for other major education unions currently negotiating with the province, but for unions across the country, Ross said.
"I don't think any worker in Ontario or Canada should rest easy with the recourse to the notwithstanding clause to override workers' rights," she said.
While the Saskatchewan government invoked the notwithstanding clause in 1986 in strike-ending legislation, Ontario has taken the unprecedented step to include the clause in legislation before workers hit the picket line.
Education Minister Stephen Lecce has defended the use of the clause, saying it is to prevent disruptions to classroom learning because of strikes or litigation.
Despite the legislation, CUPE has said its 55,000 education workers, including custodians and education assistants, will strike Friday and "until further notice," risking fines imposed in the legislation of up to $4,000 per employee and $500,000 for the union per day.
Mediation between CUPE and the government concluded Thursday with no deal ahead.
Lecce had said he wouldn't negotiate further unless the union cancelled its strike.
In negotiations, the union had asked for annual salary increases of 11.7 per cent for its workers, who it says make on average $39,000 and are among the lowest paid in schools. The government has said the new, imposed four-year deal would give 2.5 per cent annual raises to workers making less than $43,000 and 1.5 per cent raises to all others, though the union has argued those figures are inflated.
The use of back-to-work legislation has been increasingly common since the 1980s, said Charles Smith, co-author of "Unions in Court," a history of the labour movement's engagement with the Charter. He said it eventually led the Supreme Court in 2015 to declare the right to strike as constitutionally protected.
Smith noted a union still must follow several steps before it can legally picket, including negotiations, a strike vote and a strike notice.
He called Ontario's move "extremely heavy-handed" and "draconian."
"The union played by the rules and the government is essentially rewriting those rules in its favour," said Smith, associate professor at St. Thomas More College at the University of Saskatchewan.
The Ontario Liberal government's 2012 back-to-work legislation imposing contracts on striking education workers and teachers was eventually found to have violated bargaining rights, with the government paying millions of dollars in compensation to the unions.
This time around, the government's use of the notwithstanding clause could be seen as a way to avoid those financial costs, said Alison Braley-Rattai, associate professor of labour studies at Brock University.
"It is hard not to read it any other way than wanting to dictate contract terms then not having to pay out the other end for a violation of their Charter rights," she said.
While the union has limited legal routes to contest the law, Braley-Rattai said the move could spark momentum for a larger political response.
"It takes the ability to organize quickly and comprehensively to capitalize upon that spark," she said.
Unions across the country have voiced solidarity with the CUPE education workers, calling on members to support an Ontario-wide protest on Friday and in some cases vowing to walk out themselves.
Canadian Labour Congress president Bea Bruske said in her 30 years in the labour movement, she does not "remember a time when there was this much immediate response to something that egregious."
She said along with joining picket lines, the congress has discussed possible work-to-rule measures.
"With this government, we have no choice but to look at every option possible as a fight back," she said.
"If other provinces adopt this kind of tactic, that's hugely problematic. But what I'm worried about is that it will also embolden employers to use a bully method, rather than coming to the bargaining table to actually be proactive."
Ross, the McMaster professor, said other support measures could include donations to CUPE or partial student and teacher walkouts. There is also the possibility of wildcat strikes -- informal, illegal actions where unionized workers strike without following the formal legal process.
But she said the first test of broader labour movement solidarity in this dispute will come Friday, if scheduled job action goes forward.
"We'll be watching to see not just how mobilized the union itself is but whether or not the broader labour movement comes out in support and in what numbers," Ross said.
This report by The Canadian Press was first published Nov. 3, 2022.
Jordan Omstead, The Canadian Press
Trudeau tells Ford use of notwithstanding clause is 'wrong and inappropriate' in call
Yesterday
OTTAWA — Prime Minister Justin Trudeau told Ontario Premier Doug Ford on Wednesday that his pre-emptive use of the notwithstanding clause in legislation intended to keep education workers from striking is "wrong and inappropriate."
NDP MP calls for emergency debate on Ford's use of notwithstanding clause© Provided by The Canadian Press
"The Prime Minister emphasized the critical importance of standing up for Canadians’ rights and freedoms, including workers’ rights," Trudeau told Ford, according to a readout of the call provided by the Prime Minister's Office.
"He was clear that the pre-emptive use of the Canadian Charter of Rights and Freedoms' notwithstanding clause is wrong and inappropriate, and should only ever be used in the most exceptional of circumstances."
Ford's office, meanwhile, said the premier told the prime minister that allowing education workers to strike would have an "unacceptable" effect on students after two years of disruptions due to the pandemic.
"He also reiterated that Ontario is determined, if necessary, to pass legislation to keep classrooms open and ensure certainty and stability for parents and students now and in the future," the readout provided by the province said.
The union representing the 55,000 affected education workers in Ontario said it still plans to hold a strike starting Friday and it will continue indefinitely, despite the looming legislation expected to pass Thursday that would make that illegal.
The legislation says the government intends to invoke the notwithstanding clause -- which allows the legislature to override parts of the Canadian Charter of Rights and Freedoms for a five-year term -- to keep the eventual law in force despite any potential constitutional challenges.
The Liberals have been critical of the Ford government this week, with Trudeau previously describing the legislation as outright "wrong."
Earlier Wednesday, Trudeau said his government was looking at its options to respond to Ford's use of the notwithstanding clause.
He made the brief comment in French outside the House of Commons moments after NDP Leader Jagmeet Singh called for more action from the federal government.
Related video: Interim NDP leader Peter Tabuns among 16 MPPs kicked out of Ontario legislature Duration 2:55 View on Watch
"We’re seeing right now a clear attack on workers, on vulnerable workers and on workers’ rights. There has to be a response," Singh told reporters Wednesday afternoon.
"We're open to any solution to be put on the table and to evaluate if it will work or not and if it will help workers' rights."
Federal Justice Minister David Lametti didn't bite on a question earlier Wednesday about what options might be on the table.
"I'm not going to discuss options here," he said before a Liberal caucus meeting, though there are "a number of different things one might do."
Lametti said the pre-emptive use of the clause is "very serious" and "anti-democratic."
"It guts Canadian democracy," he said. "It means the Charter doesn't exist."
An NDP MP, Matthew Green, called on the House to hold an emergency debate on the issue Wednesday afternoon.
He called Ford's government "authoritarian" and accused the premier of being a "liar" who is misleading Ontarians about the impacts of the choice to use the notwithstanding clause.
"This particular case could present a precedent for provincial governments across the country that might seek to use this to further undermine the collective agreement rights of workers," Green told reporters earlier in the day.
The House deputy Speaker denied the request, saying the conditions for an emergency debate weren't met.
Green also called on the House to unanimously condemn the Ford legislation on Wednesday afternoon, but some Conservative MPs voted down his motion.
Trudeau and others have called on federal Conservatives to respond, but MPs on their way into a Conservative caucus meeting Wednesday morning declined to comment.
The Canadian Union of Public Employees, which is representing the workers, presented a counter-offer late Tuesday night in response to the imposed contract terms in the legislation but has not yet provided details about the proposal.
Ontario's education minister has suggested that there won't be much movement at the bargaining table this week and insisted that any new offer from the union must include cancelling the strike.
This report by The Canadian Press was first published Nov. 2, 2022.
Marie-Danielle Smith, The Canadian Press
