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Charter - s.1 Oakes - Means-Ends Balancing. Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court considers the 'means-ends balancing' element of the Charter s.1 proportionality test:(3) Proportionality between salutary and deleterious effects
(1) General principles
[125] As Favreau J.A. explained in OECTA, at para. 215, the final stage of the Oakes analysis engages a balancing exercise:This last branch of the s. 1 analysis asks whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objective. The court must turn its mind to the effects of the measure to determine, on a normative basis, whether the infringement of the right in question can be justified in a free and democratic society. This requires a balancing between the measure’s salutary and deleterious effects ... [T]he Supreme Court explained the court’s task in the following terms:It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society “in direct and explicit terms”…. In other words, this final step allows courts to stand back to determine on a normative basis whether a rights infringement is justified in a free and democratic society. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision. Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective. [Citations omitted.] [126] The normative and value-laden balancing of the relevant factors is a question of law that is reviewable on a correctness standard. However, to the extent that the assessment of the salutary and deleterious effects of legislation depends on factual findings, the findings made by the application judge must be respected unless they are tainted by palpable and overriding error. . Ontario English Catholic Teachers Association v. Ontario (Attorney General) [proportionality]
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.
In these quotes the court considers the 'proportionality' step of the s.1 Charter 'balancing' test - here after finding a s.2(b) freedom of association violation:(4) Proportionality
[213] Having found that the Act is not minimally impairing, it is technically not necessary to consider whether its salutary effects are proportional to its detrimental effects: Carter, at para. 122.
[214] Nevertheless, dealing with this issue briefly, I note that many of the same considerations that lead me to conclude that the Act is not minimally impairing lead to the conclusion that its detrimental effects outweigh its salutary effects.
(i) General principles
[215] This last branch of the s. 1 analysis asks whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objective: Hutterian Brethren, at paras. 72-73. The court must turn its mind to the effects of the measure to determine, on a normative basis, whether the infringement of the right in question can be justified in a free and democratic society: Frank, at para. 76. This requires a balancing between the measure’s salutary and deleterious effects: Hutterian Brethren, at para. 100. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 79, the Supreme Court explained the court’s task in the following terms:It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society “in direct and explicit terms”.... In other words, this final step allows courts to stand back to determine on a normative basis whether a rights infringement is justified in a free and democratic society. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision. Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective. ....
(iii) The Act’s salutary effects are not proportional to its deleterious effects
[221] I agree with the application judge that the Act’s salutary effects are not proportional to its deleterious effects, although I arrive at this conclusion through somewhat different reasoning.
[222] The government is responsible for ensuring responsible fiscal management and the delivery of public services to Ontarians. These are core government functions. Ontario put forward some evidence that it would be most prudent to manage potential financial challenges by decreasing the province’s debt load and reducing its spending. Public sector wages are a significant proportion of government spending. The Act would no doubt assist the government in reaching these goals.
[223] However, I cannot accept that the circumstances surrounding the government’s decision to enact the legislation justify its infringement of the Charter. Ontario has not been able to explain why wage restraint could not have been achieved through good faith bargaining. While I accept that Ontario has stated a pressing and substantial objective, in the proportionality analysis, the degree to which the objective is pressing becomes relevant: Oakes, at p. 140. In the absence of evidence establishing a need to proceed with expediency, it is difficult to see how the Act’s benefits outweigh its substantial impact on the respondents’ collective bargaining rights.
[224] Ontario’s argument that s. 2(d) of the Charter is meant to protect the process of collective bargaining and not specific outcomes becomes relevant again. There is no dispute that the government can seek to keep compensation increases to 1% per year or less. The issue becomes the process through which the government arrived at this outcome. In the absence of any evidence for the need for expediency or that the same goal cannot be achieved through collective bargaining, it is hard to understand on what basis the Act’s salutary effects outweigh its deleterious effects.
[225] In contrast, because of the Act, organized public sector workers, many of whom are women, racialized and/or low-income earners, have lost the ability to negotiate for better compensation or even better work conditions that do not have a monetary value. Considering these impacts against the Act’s purported benefits leads me to conclude that, on balance, the Act’s infringement cannot be justified. By imposing a cap on all compensation increases with no workable mechanism for seeking exemptions, the deleterious effects of the Act outweigh its salutary effects.
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