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Charter - s.1 Oakes Test - Minimum Impairment. Ontario English Catholic Teachers Association v. Ontario (Attorney General) [minimal impairment]

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 'minimal impairment' step of the s.1 Charter 'balancing' test - here after finding a s.2(b) freedom of association violation:
(i) General principles

[199] In Carter, at para. 102, the Supreme Court explained this stage of the Oakes analysis as follows:
At this stage of the analysis, the question is whether the limit on the right is reasonably tailored to the objective. The inquiry into minimal impairment asks “whether there are less harmful means of achieving the legislative goal” (Hutterian Brethren, at para. 53). The burden is on the government to show the absence of less drastic means of achieving the objective “in a real and substantial manner” (ibid., at para. 55). The analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object.
[200] In Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, the Supreme Court emphasized that “the law must be carefully tailored so that rights are impaired no more than necessary”: at para. 58, citing RJR-MacDonald Inc., at para. 134. While the court accords deference to the legislature’s choices, deference does not insulate the government from having to demonstrate that an impugned measure is minimally impairing and justified under s. 1: U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083, at paras. 62-64. At the same time, however, legislators are not held to a level of perfection; the court should not find a law minimally impairing because it can “conceive of an alternative which might better tailor the objective to infringement”: Libman, at para. 58; see also Martin, at para. 112.


(iii) The Act is not minimally impairing

[205] I agree with the application judge that the Act is not minimally impairing essentially for the reasons he provided.

[206] Ontario provided no evidence that the province could not achieve the same goals through collective bargaining with the employees under its direct employment and by capping the funding it provides to broader public sector employers thereby limiting the money those employers would have available for collective bargaining with their employees.

[207] As discussed above, the province had not tried to negotiate collective agreements with the respondents in which it put forward the position that it would not agree to increases in compensation above 1% per year. There was no evidence that further negotiation would be futile. As noted by the application judge and as discussed above, there were several examples in the record of agreements in prior years where wage increases were capped at 0%, not even allowing for increases that accounted for inflation. In addition, while I accept that Ontario’s objective is pressing and substantial, there is no evidence of urgency or of an imminent need to impose a cap on compensation increases, such that there was no time to achieve the desired cost savings through negotiations.

[208] As also discussed above, the right to collective bargaining protected by s. 2(d) is not a right to an outcome but a right to a process of collective bargaining. In my view, Ontario has failed to explain why, in this case, the right to such a process should be infringed without first attempting to engage in a process of good faith bargaining.

[209] Ultimately, the only potential rationale for obviating the process of collective bargaining is expediency. However, in the absence of any evidence showing a need for expediency, imposing broad-based legislation of this nature is not minimally impairing.

[210] Ontario argues that at the minimal impairment stage of the analysis, the court is only permitted to look at whether different legislative provisions could have been implemented that would be less impairing and that it was improper for the application judge to consider voluntary wage restraint as an alternative because this was not a legislative alternative. I reject this argument. Ontario has provided no authority for this position. More importantly, in the context of a s. 2(d) analysis, it is logically relevant to consider whether the government’s goals can be achieved without impeding the process of collective bargaining through legislation.

[211] Even if one were to accept Ontario’s argument that the only appropriate comparator on a minimal impairment analysis must be legislative, Ontario has failed to demonstrate that the Act is minimally impairing of the respondents’ collective bargain rights. Notably, as discussed above, the government’s failure to implement a meaningful process that would allow for exemptions demonstrates that the Act is not minimally impairing. I accept that a meaningful exemption process could provide evidence that legislation is carefully tailored to meet its objective by providing a mechanism to alleviate against a law’s potential disproportionate impact in a particular case. In this case, however, for the reasons discussed above, there is no evidence that the exemption process in s. 27 of the Act has provided such a mechanism. Ontario has not advanced evidence to establish that, as implemented, the exemption process affords a meaningful channel for negotiation and collective bargaining.

[212] Accordingly, I find that Ontario has not demonstrated that the Act is minimally impairing.


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Last modified: 18-02-24
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