Among negotiations for that renewal of collective contracts in Ontario’s education sector, the province’s four unions representing teachers and support became a member of forces on 12. 12 to produce a Charter challenge from the Ontario government’s recently passed legislation they’re saying violates their legal rights to unrestricted collective bargaining.
Based on the Association plusieurs enseignantes et plusieurs enseignants franco-Ontarians (AEFO), the Elementary Teachers’ Federation of Ontario (ETFO), the Ontario British Catholic Teachers’ Association (OECTA), and also the Ontario School Teachers’ Federation (OSSTF), Bill 124, the Protecting a Sustainable Public Sector for Generations To Come Act, 2019 which has been around since the Ontario legislature in June and received royal assent in November. 7, violates Charter s. 2(b), which guarantees freedom of expression, and s. 2(d), which guarantees freedom of association. The unions also argue Bill 124, which imposes a cap on public sector salary increases at one percent for the following 3 years, also violates the Crown’s duty to bargain in good faith.
The final time all Ontario’s education unions became a member of forces in the court happened in 1997 when Premier Mike Harris’s Progressive Conservative government unsuccessfully searched for an injunction to pressure teachers to work. Some 126,000 of these walked from the job – with what grew to become the biggest work stoppage in United States history – to protest Bill 160, the training Quality Improvement Act, which overhauled Ontario’s education system.
The final time the majority of the Ontario teachers unions, such as the ETFO and OSSTF, joined together on the Charter challenge is in 2012 once they claimed that Bill 115, Putting Students First Act, went by Dalton McGuinty’s Liberal government to impose two-year contracts on public school teachers interfered using their to collective bargaining as well as their to strike, unlikes. 2(d).
In OPSEU v. Ontario 2016 ONSC 2197, the Ontario Superior Court agreed using the unions the since-repealed law was unconstitutional.
Howard Goldblatt, Goldblatt Partners LLP
Work lawyer Howard Goldblatt, who heads Goldblatt Partners LLP in Toronto and Ottawa, symbolized elementary teachers unions within the 1997 and 2012 cases and hopes the same court involved with OPSEU will provide as favorable a ruling to his clients, the ETFO and also the AEFO, in the present Charter challenge against Doug Ford’s government because the bargaining continues.
“One would hope this Charter challenge might alter the attitude for the negotiations, but you never know,” stated Goldblatt.
Within their notice of application, the ETFO and AEFO declare that the consultation sessions that they were asked to sign up throughout the lead-as much as Bill 124 were “shams,” which the government’s “sole purpose” in holding them was an effort to boost its “position in almost any future litigation challenging the constitutionality from the wage-restraint legislation it had already decided to enact.”
The 2 unions reason that under Bill 124, they’re “legally precluded from bargaining a genuine wage increase since the caps that apply throughout the [three-year] moderation period are very well below credible projection from the rate of inflation.” Strike action would, therefore, be made moot – a scenario the union’s condition, “dramatically tips the total amount within the collective-bargaining process towards the employers and [the] government.”
Work lawyer Susan Ursel, someone with Ursel Phillips Guys Hopkinson LLP in Toronto who can serve as counsel for that OSSTF within the Charter action, believes OPSEU assists being an “interesting precedent” to depend upon within the union’s challenge to Bill 124 within the Superior Court sometime in the coming year.
Susan Ursel, Ursel Phillips Guys Hopkinson LLP
As she described, the 2016 OPSEU decision is “recent and it is within the same sector within the same province, but while it’s another government and also the legislation is a touch different, I believe you will find very top reasons to think this Charter challenge will raise much the same types of questions for that court and we’re wishing it’ll respond to them in the same manner.”
Ursel, a past person in the Independent Advisory Board for Top Court of Canada Judicial Appointments, stated the Charter situation should spark action in the government before it is even heard.
“It very pointedly informs the federal government it runs the danger, whether it maintains this hardline, of getting its apple cart upset somewhere lower the road if it is found to possess breached Charter legal rights. I’d take into account that incentive to return to the blackboard and perform a bit more working regarding how to settle this trouble using the unions,” she described. “The government can exempt itself underneath the legislation from the own application. Therefore if it wants to create a different deal than a single percent, the federal government gave itself the ability to do this. We have an out underneath the legislation – along with a majority within the legislature – therefore if the federal government wanted to obtain seriously interested in negotiating, it may also repeal the Act.”
In the notice of application, the OSSTF states that before Bill 124 grew to become law, its introduction within the legislature was built with a “significant effect on collective bargaining,” by which employers, like the College of Ottawa, decreased the suggested compensation to OSSTF people to satisfy the legislation’s target of the one percent annual increase over 3 years.
The secondary teachers federation argues that there’s no Charter s. 1 justification for Bill 124, so it states infringes, partly, on s. 2(d) by “unilaterally imposing essential conditions and terms of employment regarding compensation and benefits without significant discussion, settlement or consultation … and which represent home loan business compensation when considered intangible, inflation-adjusted terms.”
The OECTA addresses the stop by compensation in the notice of application if this notes that Ontario’s inflation rate, as measured through the Consumer Cost Index, is 2.4 percent, and challenges the reference by Treasury Board President Peter Bethlenfalvy, who tabled Bill 124 within the legislature, towards the government’s facing a $15 billion deficit in 2018-19 if this required office this past year like a justification for that law – despite the province’s Financial Accountability Office had reported the deficit for your period was under half that, or $7.4 billion.
Bill 124 “compromises the fundamental integrity of the entire process of collective bargaining by pre-emptively undermining negotiations on probably the most important issues to employees: compensation,” the united states in the court filing.
Paul Cavalluzzo, Cavalluzzo LLP
Work lawyer Paul Cavalluzzo, who heads the Toronto firm, Cavalluzzo LLP, to represent the OECTA within the Charter challenge, stated that Bill 124 comes down to “a massive interference while collective bargaining” that collides with three Top Court of Canada rulings that affirmed collective bargaining was protected under s. 2(d): Health Services and Support – Facilities Subsector Bargaining Assn. v. Bc 2007 SCC 27 Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1 and Saskatchewan Federation of Work v. Saskatchewan 2015 SCC 4.
“The law is extremely settled – and also the test is whether or not the federal government or even the legislation substantially disrupts the entire process of collective bargaining that it is no more significant,” stated Cavalluzzo, who had been involved with quarreling the B.C. Health Services and Saskatchewan Federation of Work cases before the Top Court.
He described that additionally to getting the highest Court declares Bill 124 unconstitutional, the Catholic teachers union needs other remedies, for example quashing any provision of the collective agreement that is a result of what the law states.
“The legislation targets teachers,” stated Cavalluzzo. “It was initially introduced on June 5 once the teachers were in negotiations as their collective agreement would expire in August. 31.”
He added that other public servants won’t have Bill 124 until 2021 or 2022, whereas “the people affected immediately would be the teachers.”
Bethlenfalvy believes Bill 124 is constitutional, based on his press secretary.
“Our government is going to be reviewing the constitutional challenge if we are offered and we’ll be responding in the court. Because this matter is going to be known the courts, it might be inappropriate to take a position or comment further,” authored Sebastian Skamski within an e-mail towards the Lawyer’s Daily, who noted the government “has been open, transparent and reasonable” in the approach.
“It is essential to know why this legislation was introduced to begin with – something we’ve been open about since the first day. 1 / 2 of government charges are compensation. We still pay over $1 billion on charges every month, so we have the biggest debt associated with a sub-sovereign jurisdiction on the planet.”
Skalski stated the Treasury Board “consulted in good belief – was available to ideas the unions introduced forward and have moved on exploring pooling of advantages – a concept introduced forward through our consultation process.”
“In the finish, this legislation was essential to safeguard the general public services that Ontarians rely on and also the jobs of those who provide individuals services, while addressing the province’s fiscal challenges. This legislation also experienced due legislative process and it was ultimately passed.”
Added Ursel: “It’s interesting the add the legislation may be the president from the Treasury Board and never the minister of your practice. It informs you in which the government’s priority lies for the children. Sturdy money and never about the caliber of public education.”
Replying again by email, Skamski authored “the Treasury Board Secretariat has responsibility for expenditure management and controllership, in addition to oversight of work relations between your government and also the Ontario Public Service and broader public sector.”