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Charter - s.1 Oakes Test - Pressing and Substantial Objective

. 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 Charter s.1 'pressing and substantial objective' (of the impugned statute) element:

(1) Pressing and substantial object

[67] The parties disagree about how the legislative object of the TTC Act should be characterized. According to Ontario, “the Act’s objective is preventing disruptions of TTC services.” The respondents disagree, arguing that this stated objective is overly broad and “conflate[s] the objective with its means.”

[68] I agree with the respondents on this point. As Cory J. explained in U.F.C.W., Local 1518, v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 SCR 1083, at para. 59, the legislative objective must be defined with precision:

For the purpose of the Oakes test, a legislative objective must not be overstated. It must be accurately and precisely defined so as to provide a clear framework for evaluating its importance, and to assess the precision with which the means have been crafted to fulfil that objective. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised.

See also OECTA, at para. 158.

[69] I accept that it is accurate in a literal and narrow sense to say that the Ontario legislature chose to ban TTC strikes and lockouts in order to “prevent disruptions of TTC services”. However, the goal of “preventing disruptions” would not have been a pressing and substantial legislative objective in and of itself, if the legislature had not also believed that these disruptions would cause significant public harms. This is reflected in the TTC Act’s preamble, which characterizes the legislature’s concern as being that “[w]ork stoppages … and the resulting disruption of transit services give rise to serious public health and safety, environmental, and economic concerns.”

[70] Strikes are disruptive by nature. I agree with the respondents that if the objective of the TTC Act were framed as merely banning strikes to “prevent disruptions to TTC services”, this would essentially amount to saying that the purpose of banning strikes at the TTC was to ban strikes. To adopt what Karakatsanis J. said in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 63, “this articulation of the law’s purpose is not sufficiently precise and is essentially a description of the means the legislature has chosen to achieve its purpose”.

[71] In my view, the proper focus of the s. 1 analysis must be on the serious harms that the legislature believed it would prevent by banning TTC strikes. At the second stage of the Oakes test, it is the prevention of these anticipated harms that must be balanced against the impact of the strike ban on TTC employees’ Charter rights and freedoms. This requires, among other things, an assessment of the likelihood of these harms actually materializing, either if strikes were not banned at all, or if a narrower strike ban were imposed that allowed TTC services to continue at a reduced level. Characterizing the purpose of the legislation as merely to “prevent disruptions” would obscure the proper analytic focus.

[72] I accordingly agree with the respondents that Ontario’s proposed framing of the TTC Act’s purpose is overly broad.

[73] However, I do not agree with the respondents that the application judge was correct to re-frame the Act’s legislative objective by asking whether Ontario had demonstrated that the TTC is an “essential service”. This further step was analytically unnecessary, and led the application judge to confuse the threshold screening at the first stage of the Oakes test with the balancing that must be conducted at the second stage of the Oakes analysis.

[74] The application judge stated:

The basis for the Government’s argument is that the TTC provides a “critically important service” for the City of Toronto and the Greater Toronto Area. The Government does not directly argue that the TTC is an “essential service”. Whether the service provided by the TTC is “critically important” or “essential” may simply be a matter of semantics. The crucial point is that the Government must establish that the service provided by the TTC is so “critical” or “essential” that preventing the disruption caused by a strike, is a “pressing and substantial” objective that justifies the removal of the right to strike.

He went on to explain why he was not satisfied that “the TTC is an essential service as that term has been defined in the caselaw”, because he was not persuaded that the evidence demonstrated that disruptions of TTC service would, in fact, cause significant harm to public health, safety, the environment, or the economy.

[75] In my view, the application judge’s approach led him to embark on the second-stage Oakes proportionality inquiry prematurely. The proper question at the first stage of the s. 1 analysis was simply whether the harms that the government believed would arise if a TTC strike caused a transit system shutdown were so grave that the legislature’s goal of preventing these harms can be seen as “pressing and substantial”. The likelihood of any of these anticipated harms in fact arising from a TTC strike, and whether the probable gravity of these harms outweighed the impact on TTC employees of having their right to strike taken away, were separate questions that fell to be considered at the second stage of the Oakes test.

[76] There is no real dispute between the parties that the anticipated harms that are set out in the TTC Act’s preamble are capable of rising to a level that would justify restricting the right to strike. As the application judge recognized, international labour law permits strike bans in order to maintain “essential services”, which are defined to include “those services whose withdrawal would endanger the life, personal safety or health of the whole or part of the population.” In SFL, the majority stated that “[t]he maintenance of essential public services is self-evidently a pressing and substantial objective”: SFL, at para. 79. To the extent that the Ontario legislature’s purpose in passing the TTC Act was to prevent “serious public health and safety … concerns”, I am satisfied that this qualifies as a pressing and substantial objective.

[77] The goal of addressing “serious … economic concerns” has also been previously found to be a pressing and substantial objective that can, at least in some circumstances, justify restricting the right to strike: see, e.g., RWDSU.

[78] I also have little difficulty concluding that the legislature’s further stated goal of reducing atmospheric pollutants can properly be seen as a pressing and substantial public objective: see, e.g., R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 82, at para. 115. Indeed, statements made by the Minister of Labour in the legislature in 2011 indicate that he, at least, was especially concerned about how increased atmospheric pollution from vehicle exhaust might affect Torontonians’ health.

[79] To reiterate, the question at the first stage of the Oakes analysis is merely whether the goal of preventing these harms can, in theory, justify some infringement of Charter rights. As Lauwers J.A. explained in Gordon v. Canada (Attorney General), 2016 ONCA 625, 404 D.L.R. (4th) 590, at para. 196, leave to appeal refused, [2016] S.C.C.A. No. 444 (Professional Institute of the Public Service of Canada), and [2016] S.C.C.A. No. 445 (Gordon):

This stage of the s. 1 analysis is usually not an evidentiary contest. Rather, “the proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective” and a “theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis” [Citations omitted; emphasis in original.]

See also OECTA, at para. 169.

[80] Whether the actual infringement of the Charter rights at issue is justified requires an assessment of the salutary and deleterious effects of the legislation, and consideration of whether a less rights-impairing legislative solution would adequately achieve these salutary effects. However, these are questions that fall to be decided at the second stage of the Oakes analysis.

[81] I would accordingly find that the application judge erred by concluding that Ontario had failed to show that the TTC Act was directed at pressing and substantial governmental objectives. He based this conclusion on his findings that the evidence did not establish that a TTC service shutdown was likely to cause any of the anticipated harms to materialize. This latter question was not germane to the first branch of the s. 1 Charter analysis, which requires the importance of the governmental objective to be assessed in the abstract.

[82] That said, I agree with the respondents that this error was more one of form than of substance. The questions that the application judge erroneously slotted into his “pressing and substantial objective” analysis were all ones that he would have had to consider in any event in the second-stage Oakes proportionality analysis. I will address Ontario’s objections to the application judge’s substantive conclusions on these questions later in my reasons.

[83] However, I would also find that the application judge made a further error in his first-stage Oakes analysis.

[84] Ontario put forward evidence that TTC strikes have disproportionate negative consequences for “equity-seeking groups”, and took the position that preventing harms to members of these groups was an additional pressing and substantial legislative purpose.

[85] The application judge accepted the first premise of Ontario’s argument, stating:

I accept that a TTC strike may have a disproportionate effect on equity-seeking groups. Persons working in lower income jobs may not have the option of working from home. Persons who cannot access vehicles will have fewer transit options.

However, he found that Ontario could not rely on the prevention of these anticipated harms as a s. 1 objective, primarily on the basis that this objective was not mentioned in the TTC Act’s preamble:

The equity issue is not mentioned in the broad preamble of the TTC Act. The preamble refers to “serious public health and safety, environmental, and economic concerns”, but does not reference equity concerns. I am of the view that a post-facto objective that did not cause the law to be enacted cannot form the basis for a s. 1 justification. [Citations omitted.]

[86] I agree with Ontario that the absence of any mention of this goal in the preamble did not automatically exclude it from consideration as part of the legislative objective.

[87] As Karakatsanis and Martin JJ. noted in Ndhlovu, at para. 64, in the context of s. 7 Charter overbreadth analysis:

To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution. [Citations omitted.]

In my view, this same approach applies when identifying legislative objectives for the purposes of s. 1 justification. The lack of any mention of a particular objective in a legislative preamble may be significant, but it is not determinative, and sometimes the omission can be filled by considering other interpretive sources.

. Ontario English Catholic Teachers Association v. Ontario (Attorney General) [pressing and substantial objective]

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 'pressing and substantial objective' step of the s.1 Charter 'balancing' test - here after finding a s.2(d) freedom of association violation:

[158] The Supreme Court has explained that the objective of a law must not be stated in too general terms because, otherwise, “it will provide no meaningful check on the means employed to achieve it: almost any challenged provision will likely be rationally connected to a very broadly stated purpose”: R. v. Moriarity, 2015 SCC 55, [2015] S.C.R. 485, at para. 28; see also Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 46. On the other hand, an articulation that is too narrow “may merely reiterate the means chosen to achieve it”: Frank, at para. 46. On this basis, the Supreme Court has stated that a law’s purpose should be “both precise and succinct” and distinguished from the means chosen to implement it: Moriarity, at para. 29; see also Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 23.

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(i) General principles

[168] As a general principle, Ontario must establish that the Act’s objective is “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 352. This ensures that “objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection”: Oakes, at p. 138.

[169] As this court stated in Gordon, “[t]his stage … is not usually an evidentiary contest. Rather, ‘the proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective’ and a ‘theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis’”: at para. 196 (emphasis in original), citing Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 25-26. The court also noted, at para. 199, that “[m]ost s. 1 Charter cases move quickly past the first stage of determining whether a government’s objectives were pressing and substantial.”

[170] In Gordon, at para. 224, this court further emphasized the deference courts owe governments in setting their policy objectives, specifically in the context of labour legislation:

Courts conducting full-scale Oakes assessments in relation to labour legislation are obliged to delve deeply into government fiscal policy and its determination in highly sensitive areas. Judicial probing will lead inevitably into real tensions about the respective roles of Parliament and the judiciary in governing Canada, since s. 1 of the Charter places courts in the role of final arbiter of constitutional rights. Courts have recognized, through a series of limiting principles, that judicial deference to government policy determinations is prudent as a matter of institutional capacity and the constitutional legitimacy of judicial review. In general terms, judges ought not to see themselves as finance ministers.

[171] The court went on to list the limiting principles as: 1) the separation of powers between legislatures, the courts and the executive; 2) the recognition of the respective institutional capacities of each branch; and 3) the core competencies of each branch, including the government’s core competency in determining economic policy, budgeting decisions, the proper distribution of resources in society, labour relations regulation and how best to respond to situations of crisis. Regarding these core competencies, the court observed, at para. 234, that “most importantly, it is a core function of government to provide leadership in times of crisis, when something must be done to protect the common good.” Further, when complex policy issues are at stake, the court should refrain from second-guessing, in hindsight, the legislatures’ policy decisions: Gordon, at para. 293.

[172] Despite the direction to defer to legislatures’ policy decisions, especially in matters involving decisions related to their core competencies, this court in Gordon nevertheless noted that “deference never amounts to submission, since that would abrogate the court’s constitutional responsibility…. ‘The role of the judiciary in such situations lies primarily in ensuring that the selected legislative strategy is fairly implemented with as little interference as is reasonably possible with the rights and freedoms guaranteed by the Charter’”: at para. 236, citing PSAC v. Canada, 1987 CanLII 89 (SCC), [1987] 1 S.C.R. 424, at p. 442, per Dickson C.J. (dissenting in part).

[173] In addition, as discussed more fully below, the Supreme Court has consistently stated that concerns over managing a limited budget cannot normally serve as a free-standing pressing and substantial objective and that attempts to justify Charter right infringements based on budgetary constraints will be approached with strong skepticism: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 109; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 72; Health Services, at para. 147; and Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 153.

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(iii) The Act’s objective is pressing and substantial

[181] In my view, the application judge erred in his approach to the analysis of whether Ontario had posited a pressing and substantial objective because he failed to give sufficient deference to the legislature’s policy objectives. This is not a case in which the government’s only rationale for the policy was a desire to better manage its finances. Rather, based on various information about its deficit and economic forecasts, the government concluded that any interest rate increase could lead to financial difficulties and therefore sought to proactively avert a potential fiscal crisis. Indeed, as Dr. Dodge explained, the province was facing a growing gap between its spending and revenues, resulting in increasing debt and debt service charges. Borrowing to finance the ongoing deficit threatened the province’s fiscal sustainability by reducing the scope of traditional fiscal stimulus to respond to changes in the business cycle, increasing the risk premium on the province’s debt, and forcing the province to spend more of its revenue on the interest costs of the debt. Managing these fiscal and budgetary concerns is one of government’s core responsibilities. As held in Gordon, the court should defer to these types of policy objectives.

[182] While I appreciate that the Supreme Court has warned that courts should treat fiscal rationales as constitutionally suspect, these are ultimately matters of degree. Fiscal prudence on its own may be constitutionally suspect. However, where fiscal prudence arises from the government’s determination that it faces a real potential for fiscal crisis, the court should not engage in an overly technical analysis of the economic evidence and should refrain from analyzing subsequent savings or spending policies to assess the credibility of the government’s stated objective. Governments are entitled to set policy objectives and one of their core areas of policy-making is fiscal and budgetary. If the government can state a pressing and substantial objective that is rooted in its evidence, the court should defer to that policy choice. As held in Gordon, at para. 242, “the court should generally accept Parliament’s objectives at face value, unless there is an attack on the good faith of the assertion of those objectives or on their patent irrationality”. This does not mean that the other branches of the Oakes test will be met, but governments should be granted a generous margin for determining when and how to address and avoid a potential fiscal crisis.

[183] Accordingly, contrary to the application judge’s finding, I accept that Ontario has put forward a pressing and substantial objective in support of the Act.