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Charter - s.2(d) Association
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. Ontario English Catholic Teachers Association v. Ontario (Attorney General)
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly dismissed) 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 ('wage restraint legislation'):[5] I would dismiss the appeal with one exception. I agree with the application judge that the Act violates the s. 2(d) rights of broader public sector represented employees in Ontario and that it is not saved by s. 1. Taking into consideration the context in which Bill 124 was introduced and the restraints imposed by the Act, I am satisfied that the Act substantially interferes with the respondents’ right to participate in good faith negotiation and consultation over their working conditions. The circumstances of this case are distinguishable from other cases where wage restraint legislation was deemed constitutional because, here, there was no meaningful bargaining or consultation before the Act was passed, the Act significantly restricts the scope and areas left open for negotiation in the collective bargaining process, there is no meaningful mechanism for collective agreements to be exempted from the Act, and public sector collective agreements to which the Act does not apply generally provide for higher annual wage increases than 1%. Further, I find that the Act is not saved by s. 1 of the Charter because it does not minimally impair the respondents’ right to freedom of association, and because the Act’s deleterious effects outweigh its benefits.
[6] However, the application judge erred in declaring the entire Act unconstitutional. The Act applies to represented and non-represented employees in the broader public sector. Non-represented employees, given that they do not bargain collectively, do not benefit from the same protections as their represented counterparts under s. 2(d) of the Charter. Accordingly, the application judge’s declaration was overly broad, and should be limited to a declaration that the Act is unconstitutional in so far as it applies to represented employees.
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G. DOES THE ACT INFRINGE S. 2(D) OF THE CHARTER?
[52] In this section, I start with a review of the general principles that apply to s. 2(d) of the Charter, followed by a review of other appellate decisions dealing with wage restraint legislation. I then address whether the Act violates s. 2(d) of the Charter.
(1) General principles regarding protection of collective bargaining under s. 2(d) of the Charter
[53] Section 2(d) of the Charter provides that everyone has the freedom of association, which is a fundamental freedom.
[54] In a series of decisions, starting in 2007 with Health Services, the Supreme Court has recognized that, in the labour context, s. 2(d) of the Charter protects the right to collective bargaining.
[55] In Health Services, the Supreme Court established that the s. 2(d) right to freedom of association protects collective bargaining, which the court described as “the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining”: at para. 87. The court stated that recognizing the right to engage in collective bargaining is consistent with Charter values because it affirms the “values of dignity, personal autonomy, equality and democracy that are inherent in the Charter”: Health Services, at para. 86.
[56] The Supreme Court reaffirmed that s. 2(d) of the Charter protects the right to engage in collective bargaining in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and again in a 2015 trilogy of decisions: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, Meredith. v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125, and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245. In Mounted Police, at para. 5, the court emphasized that the purpose of s. 2(d) is to protect “a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests.” In Saskatchewan Federation, the Supreme Court also confirmed that the right to strike forms part of collective bargaining rights protected by s. 2(d): at para. 75.
[57] In these cases, the Supreme Court has consistently stated that s. 2(d) does not guarantee specific outcomes, but rather protects the right to a collective bargaining process: Health Services, at paras. 89, 91; Fraser, at para. 45; and Mounted Police, at para. 67. Similarly, the court has stated that s. 2(d) does not protect a specific model of labour relations or bargaining method, but rather the right is to a general process of collective bargaining: Health Services, at para. 91; Fraser, at para. 42; and Mounted Police, at para. 93.
[58] Further, the Supreme Court has emphasized that s. 2(d) “does not protect all aspects of the associational activity of collective bargaining”; rather, it only protects against “substantial interference” with associational activity: Health Services, at para. 90. As described in Health Services, to constitute substantial interference with the right to collective bargaining, “the intent or effect must seriously undercut or undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer”: at para. 92. Similarly, in Mounted Police, the court stated that a “process that substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power is … inconsistent with the guarantee of freedom of association enshrined in s. 2(d)”: at para. 71.
[59] In Health Services, at para. 93, the court established that there are two parts to the “substantial interference” inquiry:a. First, the court must assess “the importance of the matter affected to the process of collective bargaining, and more specifically, to the capacity of the union members to come together and pursue collective goals in concert.”
b. Second, the court must assess “the manner in which the measure impacts on the collective right to good faith negotiation and consultation.” [60] In Health Services, the court further emphasized that “[b]oth inquiries are necessary”: at para. 94. There will be no violation if the matter impacted does not substantially affect the process of collective bargaining. Similarly, even if the matter at issue substantially touches on collective bargaining, it will not violate s. 2(d) of the Charter if it preserves a “process of consultation and good faith negotiation”: at para. 94.
[61] In Fraser and the 2015 trilogy, the Supreme Court did not specifically refer to or apply the two-part substantial interference inquiry. However, in Meredith, at para. 24, the court explicitly stated that the test to determine whether state action “substantially impair[s] … employees’ collective pursuit of workplace goals” is “[t]he test … set out in Health Services.” In addition, in Gordon v. Canada (Attorney General), 2016 ONCA 625, 404 D.L.R. (4th) 590, at para. 47, 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), upon reviewing the Supreme Court decisions that followed Health Services, this court confirmed that the two-part inquiry still applies.
[62] Before moving on to a review of the wage restraint legislation cases, it is helpful to describe each of the two inquiries further.
[63] With respect to the first part of the inquiry, namely the importance of the matter to the process of collective bargaining, “the essential question is whether the subject matter of a particular instance of collective bargaining is such that interfering with bargaining over that issue will affect the ability of unions to pursue common goals collectively…. The more important the matter, the more likely that there is substantial interference”: Health Services, at para. 95.
[64] In Gordon, at para. 53, this court explained that “while protection is not afforded to the ‘fruits’ of bargaining, but only to the process by which they are to be negotiated, employer actions unilaterally undermining the ability of unions to bargain about significant matters are constitutionally suspect.” The court further explained, at paras. 53 and 54, that legislation affecting certain matters and employer actions which restrict those matters are by their nature “constitutionally suspect”. The matters of concern include salary, hours of work, job security and seniority, equitable and humane working conditions, and health and safety protections: Gordon, at para. 53. The employer actions that are “constitutionally suspect” for the purpose of s. 2(d) of the Charter include taking important matters off the table or restricting the matters that may be discussed, imposing “arbitrary outcomes”, unilaterally nullifying negotiated terms, removing the right to strike, and imposing limits on future bargaining: Gordon, at para. 54.
[65] With respect to the second part of the inquiry, as described above, the court must inquire into the impact of the measure on the collective right to good faith negotiation and consultation. In assessing the impact of a measure, the Supreme Court has emphasized that the duty to bargain in good faith requires the parties to engage in meaningful dialogue and to be willing to explain their positions: Health Services, at para. 101. However, the duty to bargain in good faith does not impose an obligation to reach an agreement or to accept any contractual provision: Health Services, at para. 103. Similarly, it does not require the parties to bargain indefinitely or preclude the parties from engaging in hard bargaining: Health Services, at paras. 102-3.
[66] Further, the circumstances under which an impugned law was adopted can be relevant to assessing the impact of the law on the process of good faith negotiations. For example, a law that is adopted after a period of meaningful negotiation and consultation is less likely to be seen as interfering with the process of collective bargaining: see Health Services, at para. 92; Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, 117 O.R. (3d) 532, at para. 41, leave to appeal refused, [2012] S.C.C.A. No. 430; and British Columbia Teachers’ Federation, at para. 82, per Bauman C.J.B.C. and Harris J.A., and at paras. 287-91, per Donald J.A. (dissenting). However, “[s]ituations of exigency and urgency” may be relevant and “[d]ifferent situations may demand different processes and timelines”: Health Services, at para. 107.
[67] In Health Services, at para. 109, the Supreme Court summarized the two-part inquiry by emphasizing that both the matter at issue and the effect on good faith collective bargaining must be substantial. The court also emphasized that this is a contextual and fact-specific inquiry:In summary, s. 2(d) may be breached by government legislation or conduct that substantially interferes with the collective bargaining process. Substantial interference must be determined contextually, on the facts of the case, having regard to the importance of the matter affected to the collective activity, and to the manner in which the government measure is accomplished. Important changes effected through a process of good faith negotiation may not violate s. 2(d). Conversely, less central matters may be changed more summarily, without violating s. 2(d). Only where the matter is both important to the process of collective bargaining, and has been imposed in violation of the duty of good faith negotiation, will s. 2(d) be breached. [Emphasis added.] The court considers relevant cases and principles at paras 68-94, and then continues:(c) General principles that arise from prior wage restraint legislation decisions
[95] As mentioned above, one of the arguments made by Ontario is that the application judge erred in failing to follow previous appellate wage restraint legislation decisions. In making this argument, Ontario points to the similarities between the legislation in these other cases and the Act, especially the Manitoba legislation.
[96] However, this argument fails to have regard to the fact-specific and contextual analysis mandated by the Supreme Court in deciding whether legislation substantially interferes with the right to collective bargaining.
[97] One of the challenges in understanding the wage restraint cases is that there is an inherent tension between the protection of a right to a process of collective bargaining but not of the right to a specific outcome. By imposing specific limitations on compensation increases, wage restraint legislation places limitations on the potential outcomes of collective bargaining, which on its own is not a violation of s. 2(d). However, imposing limits on potential outcomes, such as wages, does interfere with good faith negotiation and consultation because it limits the potential areas and scope for negotiation and consultation. As held by the Court of Appeal of Québec in Procureur général, at para. 97, the question becomes one of degree and intensity, and the degree to which legislation imposing a wage cap interferes with the ability of organizations to bargain collectively.
[98] Based on my review of the case law above, there is no formula for assessing whether the degree of interference reaches the level of substantial interference. Rather, the courts have looked at a set of factors to assess the degree of interference, and whether the measures imposed nevertheless leave room for a meaningful process of good faith negotiation and consultation.
[99] These indicia include consideration of the circumstances and process leading to the passage of the legislation. Significant collective bargaining prior to the passage of the legislation or meaningful consultation on the legislation diminish the finding of interference, because such processes mean that there was negotiation or consultation before the imposition of the wage restraint measure, and that not much more could have been gained through further negotiation or consultation. On this issue, with respect, I do not agree with the Court of Appeal of Manitoba’s finding that it was an error for the trial judge to consider the fact that the Manitoba government did not consult with the unions before passing the PSSA. Negotiation of collective agreements and consultation on legislation are different. However, as acknowledged in the decisions dealing with the constitutionality of the ERA, they can both play a role in determining whether legislation limiting the areas of negotiation violate s. 2(d). Good faith collective bargaining prior to the enactment of legislation can form the basis for a finding that there has been no substantial interference with the process of collective bargaining. Similarly, while consultation on legislation is not required, meaningful consultation can also serve as evidence that there has not been significant interference with the collective bargaining process.
[100] Another indication that wage cap legislation does not substantially interfere with the process of good faith negotiation and consultation is where the legislation leaves room for meaningful negotiation and consultation on issues other than wages. This is because, in such circumstances, the legislation still allows workers to come together in an effort to achieve workplace goals.
[101] Similarly, where the wage restraint legislation allows for a process of exemption, over which organizations can negotiate or even strike, there is an attenuated interference with the ability to negotiate and bargain in good faith.
[102] Finally, where the terms of the wage restraint legislation replicate the terms of collective bargaining agreements freely negotiated in the public sector, this serves as an indication that there has not been substantial interference because it suggests that a free process of collective bargaining would not have led to a better outcome if the unions had participated or continued to participate in negotiations.
[103] Before turning to an analysis of the Act and the circumstances under which it was enacted, I pause to comment on two additional factors the Court of Appeal of Manitoba suggested are also relevant.
[104] First, as mentioned above, the court stated, at para. 128 and elsewhere, that one relevant consideration is whether the legislation is “broad[ ]based”, applying to represented and non-represented employees. With respect, this cannot be a relevant consideration. The s. 2(d) analysis requires consideration of whether legislation substantially interferes with the process of collective bargaining. The fact that legislation may also apply to non-represented employees does not assist in this inquiry. The issue is not whether the legislation targets represented employees, but rather the impact the legislation has on represented employees’ collective bargaining rights.
[105] Second, in Manitoba Federation, the Court of Appeal of Manitoba also suggested that other wage restraint legislation cases had established that time-limited wage restraint legislation does not substantially interfere with the process of collective bargaining. Again, I do not agree with this characterization of the other decisions. The focus of the ERA decisions was on whether, despite the legislated wage cap, a process remained for the unionized employees to come together and engage in good faith negotiation and consultation over working conditions. The fact that a measure is not permanent may be relevant to assessing whether it constitutes a substantial interference. However, it is still appropriate to measure the degree of interference within the relevant collective bargaining period. It is hard to imagine that legislation that halted all collective bargaining, even for a period of one year, would sustain s. 2(d) scrutiny. In other words, time limits may be relevant but they should not be overemphasized when looking at the impact of the legislation on collective bargaining in the context and circumstances of a particular case. In this respect, I agree with the comment made by the Nova Scotia Court of Appeal in Reference re Bill 148, at para. 49:In my view, Manitoba Federation does not add any new principles to the jurisprudence with respect to s. 2(d) of the Charter. The Attorney General relies heavily on this decision because of the similarities between the legislation under consideration and the PSSA. He argues it stands for the proposition time limited wage restraint legislation is always constitutional. If the suggestion is this conclusion can be reached without the need to consider the surrounding context, this runs contrary to the clear advice of the Supreme Court of Canada in Health Services, Meredith and British Columbia Teachers’ Federation. I would not adopt such an interpretation of Manitoba Federation. [Emphasis added.] [106] Ultimately, while I take issue with the Court of Appeal of Manitoba’s treatment of pre-legislation consultation, the application of legislation to represented and non-represented employees and the time-limited nature of the legislation, I note that this does not detract from the fact that the PSSA has several of the characteristics I referred to above as indicia of constitutionality. Notably, the court found that the PSSA left room to negotiate matters of importance, including an exemption clause that maintained a right to strike over wages, and it replicated wage increases in other public sector collective agreements.
[107] As reviewed below, in contrast with the ERA and PSSA decisions, the circumstances leading up to the passage of the Act and the terms of the Act, including a comparison of those terms to other public sector negotiated agreements, all support a finding that the Act substantially interfered with the ability of the respondents to enter into good faith negotiation and consultation with their employers. I now turn to a review of these indicia as they apply to the circumstances leading up to the passage of the Act and the provisions of the Act itself. At paras 108-145 the court applies these principles to the case.
Lastly, the court excepts non-unionized employees from it's Charter s.2(d) findings:I. REMEDY
[227] Having found that the Act violates s. 2(d) of the Charter and that it is not saved by s. 1, the application judge struck the whole statute. This was an error.
[228] The Act applies to represented and non-represented employees. The rights protected by s. 2(d) of the Charter do not apply in the same way to non-represented employees and accordingly the Act is only unconstitutional in so far as it applies to the represented employees covered by the Act. . Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)
In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered s.2(a) ['association'] Charter law regarding back-to-work laws:[7] In this challenge, the Union seeks to have the PMOA declared inoperative as an unjustifiable infringement on the freedom of association guaranteed to its members by subsection 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). Should such a declaration be made, it is possible that the Union might again find itself in a legal strike position for the Port of Montreal bargaining unit. This possibility means that the issues raised in this application for judicial review are still live ones and accordingly must be decided by this Court.
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[30] The Board has reasoned that because a maintenance of activities order limits the right to strike, which has now received a degree of protection in certain circumstances under subsection 2(d) of the Canadian Charter of Rights and Freedoms in the wake of the decision of the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, 380 D.L.R. (4th) 577, maintenance of activities orders should be issued only where it is shown that they are required. In Société de transport, the CIRB wrote as follows:[160] The Board is mindful that it carries out dual responsibilities when it is seized of a question concerning the maintenance of certain activities pursuant to section 87.4 of the Code. It must consider the public’s right to protection against a danger to its safety or health while bearing in mind the preamble to the Code, which describes the Parliament of Canada’s commitment to the practice of free collective bargaining.
[161] The union argues that the Board should reassess this determination of balance and jurisprudence by prioritizing collective bargaining, in light of the constitutional recognition of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, supra.
[162] The Board is of the view that it is not necessary to question this analysis because the legislative intent and the purpose of the regime for maintaining services under the Code specifically reflect the importance and necessity of protecting the right to strike. In NAV CANADA, 2002 CIRB 168, the Board stated the following in that regard:[227] ... Any restrictions on the right to strike, even though imposed in the interests of health or safety, must appropriately respect the importance of the right in the context of the Code. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power. ...
[228] Accordingly, it is the Board’s view that any abridgement of the right to strike must be to the minimum level required to cautiously protect the health or safety of the public. Accordingly, if the Board is assured that the risk or danger is not “immediate” or “serious,” or if the operation of facilities, production of goods or supply of services in question can be limited or will not reasonably be necessary to protect public health or safety or to prevent an immediate and serious danger, the Board should determine such services not to be required.
[emphasis in the original] [163] Similarly, in Fredericton International Airport Authority Inc., 2012 CIRB 641, the Board recognized the importance that must be given to collective bargaining. In that matter, the Board was to determine whether it would exercise its discretion to order a binding method of resolution pursuant to section 87.4(8) of the Code:[11] The Preamble to the Code sets out the philosophy and values that underlie all of the statute’s provisions. In particular, the Preamble reflects Parliament’s support for collective bargaining as the preferred method of dispute resolution. When seized with an application under section 87.4, the Board’s duty is to interpret and apply this provision in a way that promotes the statutory objectives of the Code (Canadian National Railway Company, 2005 CIRB 314).
[12] Section 87.4(8) of the Code creates an exception, in certain circumstances, to this commitment to free collective bargaining (see City of Ottawa, 2009 CIRB 447). In the Board’s view, provisions such as this, which deprive the parties of their statutory rights, should be carefully and narrowly construed.
[13] Superficially, one might find it reasonable to conclude that a work stoppage that presently involves only five out of seventeen active employees in the bargaining unit could have little impact on the employer’s operations. However, in this case, the union vehemently denies that the strike by the members of its bargaining unit at the Fredericton airport has been ineffective, and affirms its belief that the labour dispute can still be resolved through meaningful negotiations. Whether the union’s belief is well-founded or not, under these circumstances it would be contrary to the purpose and objectives of the Code for the Board to prevent or interfere with the prospect of a negotiated settlement. In balancing the various rights and obligations contained in the Code, the Board must, to the greatest extent possible, give effect to the statutory right of employees and their employers to engage in free collective bargaining and make use of such economic sanctions as are available to them to enforce their respective demands. Accordingly, the presumption in favour of collective bargaining is a strong one and significant evidence is required to persuade the Board to remove that right.
[emphasis in the original] [164] In light of the decisions cited above, any restriction of the right to strike must be limited to what is strictly necessary and solely to ensure the health and safety of the public. Moreover, the burden of proof is on the party seeking to have certain activities maintained despite a strike or lock-out, that is, the employer in the present matter.
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