Simon's Megalomaniacal Legal Resources

Charter - s.2(d) Association (3)

. Amalgamated Transit Union, Local 113 v. Ontario [right to strike]

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 finds that the challenged TTC statute's ['Toronto Transit Commission Labour Disputes Resolution Act, 2011'] prohibition on a 'right to strike' violates Charter s.2(b) freedom of association:

(2) The TTC Act violates s. 2(d) by eliminating the “right to strike” at the end of a collective agreement

[51] Ontario emphasizes that the Saskatchewan legislation that was at issue in SFL – the Public Service Essential Services Act, S.S. 2008, c. P-42.2 (“the PSESA”) – did not make binding interest arbitration compulsory or provide any other method for resolving disputes between the government and the public service unions to whom the legislation applied. According to Ontario, this was why the PSESA violated s. 2(d) of the Charter, and why the prohibition on strikes in the TTC Act does not. As summarized in its factum, Ontario’s argument is that:

Precluding strikes without substituting a fair and effective alternative, such as arbitration, eviscerates union bargaining power, especially in cases of impasse. The failure to provide an alternative was the unjustified s. 2(d) breach in SFL. [Emphasis in original.]

[52] The core underlying premise of Ontario’s argument is its contention that by replacing strikes with compulsory binding interest arbitration, the TTC Act “equalizes bargaining power as both sides face the risk of being unsuccessful before the neutral arbitrator.” According to Ontario, binding interest arbitration “does not undermine employee bargaining power at all”, and therefore should be treated as if it were the functional equivalent of the right to strike, such that legislatures can freely swap one for the other without needing to justify the substitution under s. 1 of the Charter.

[53] In my view, Ontario’s argument that eliminating the right to strike does not violate s. 2(d) of the Charter as long as the right to strike is replaced with a “fair and effective substitute” is based on a misreading of Abella J.’s reasons in SFL. The failure of the Saskatchewan legislation to provide any “fair and effective alternative” to the right to strike was indeed what led Abella J. to find “an unjustified breach” of s. 2(d) of the Charter: that is, a s. 2(d) violation that could not be justified under s. 1. However, her reasons make clear that the presence or absence of a fair and effective alternative to striking in the legislation had no bearing on the threshold s. 2(d) breach analysis, and only became significant at the s. 1 justification stage.

[54] In this regard, Abella J.’s majority reasons in SFL must be read alongside Dickson C.J.C.’s dissenting reasons in the Alberta Reference, which Abella J. substantially adopted. The three statutes that were at issue in the Alberta Reference, unlike the legislation at issue in SFL, did provide for binding interest arbitration. For various reasons the arbitration scheme in the Alberta statutes was less extensive than the arbitration provisions in the TTC Act: the government had to take active steps to trigger the arbitration process, and the legislation made some issues non-arbitrable. It was these deficiencies that would have led Dickson C.J.C. to find that the Alberta legislation could not be justified under s. 1.

[55] For present purposes, however, the important point is that Dickson C.J.C. viewed the adequacy of the arbitration scheme as solely relevant to s. 1. As he explained at p. 372 of his dissenting reasons in the Alberta Reference, the legislative provisions at issue “directly abridge the freedom of employees to strike and thereby infringe the guarantee of freedom of association in s. 2(d) of the Charter” (emphasis added).

[56] Abella J. adopted this approach in her majority reasons in SFL. She explained at para. 60:

Alternative dispute resolution mechanisms … are generally not associational in nature and may, in fact, reduce the effectiveness of collective bargaining processes over time. Such mechanisms can help avoid the negative consequences of strike action in the event of a bargaining impasse, but as Dickson C.J. noted in RWDSU v. Saskatchewan, they do not, in the same way, help to realize what is protected by the values and objectives underlying freedom of association:

... as I indicated in the Alberta Labour Reference, the right to bargain collectively and therefore the right to strike involve more than purely economic interests of workers . . . . [A]s yet, it would appear that Canadian legislatures have not discovered an alternative mode of industrial dispute resolution which is as sensitive to the associational interests of employees as the traditional strike/lock-out mechanism ....

That is why, in the Alberta Reference, Dickson C.J. dealt with alternative dispute resolution mechanisms not as part of the scope of s. 2(d), but as part of his s. 1 analysis. [Citations omitted, emphasis added.]

Abella J. went on to characterize the right to strike as “the ‘irreducible minimum’ of the freedom to associate in Canadian labour relations”: SFL, at para. 61.

[57] Earlier in her reasons, at para. 46, Abella J. had observed that the suppression of the right to strike amounts to a substantial interference with collective bargaining:

[I]t should come as no surprise that the suppression of legal strike action will be seen as substantially interfering with meaningful collective bargaining. That is because it has long been recognized that the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals. [Emphasis added.]

After reviewing academic and judicial commentary, she then concluded, at para. 51 that “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining.”

[58] Later on in her reasons, at para. 78, Abella J. explained that while the “substantial interference” test from Dunmore and Health Services continues to govern, legislation that entirely eliminates the ability of workers to strike in support of their collective bargaining efforts will meet the substantial interference test:

The test, then, is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining. The PSESA demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1 of the Charter. [Italics in original; underlining added.]

[59] Significantly, Abella J. did not suggest that the “the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses” in the PSESA had any bearing on the s. 2(d) Charter analysis. Rather, she treated this as relevant only to the separate issue of whether the legislation could be justified under s. 1: see SFL, at para. 81.

[60] In summary, I am satisfied that a close examination of Abella J.’s reasons in SFL, including her adoption of Dickson C.J.C.’s dissenting reasons in the Alberta Reference, leads to the conclusion that any law that entirely eliminates employees’ right to strike after the end of a collective agreement will necessarily infringe their s. 2(d) Charter rights. The legislation may still be constitutional – that is, justified under s. 1 – if it provides for an alternative dispute resolution mechanism, such as binding interest arbitration. However, the adequacy of any legislative substitute for the right to strike only comes into play at the s. 1 justification stage of the Charter analysis.

[61] Significantly, the Court of Appeal for Québec recently reached this same conclusion in Alliance des professionnels et des professionnelles de la Ville de Québec c. Procureur général du Québec, 2023 QCCA 626, at para. 93-97, leave to appeal to SCC refused (April 11, 2024). This decision is not binding on me, but I find Mainville J.A.’s interpretation of this aspect of SFL persuasive.

[62] I would add further that the SFL majority’s repeated description of the “right to strike” as a newly-recognized component of the s. 2(d) Charter right of freedom of association would make little sense if legislatures were always free to replace the ability to strike with compulsory binding interest arbitration, without having to justify the substitution under s. 1. Among other things, this would mean that legislatures could abolish the right to strike without any need to demonstrate that they were acting in pursuit of a “pressing and substantial” legislative objective. If this were so, it would be hard to see how the ability to strike could properly be characterized as a “right”, let alone one that Abella J. described in SFL as “an essential part of a meaningful collective bargaining process”, and “an indispensable component” of the s. 2(d) right to collective bargaining: SFL, at para. 3 (emphasis added).

[63] Since the TTC Act entirely eliminates TTC employees’ ability to strike during the collective bargaining process, it necessarily follows that the legislation “substantially interferes” with their s. 2(d) collective bargaining rights to such an extent that these rights are infringed.

[64] It follows that it was not necessary at this stage of the Charter analysis for the application judge to make any case-specific inquiry into exactly how the TTC Act’s removal of the right to strike has affected collective bargaining since 2011. Rather, the application judge could have simply found a breach of s. 2(d) based on the TTC Act’s complete elimination of TTC employees’ right to strike, and then gone on to consider whether this breach could be justified under s. 1.

....

[144] To reiterate, the narrow question on this appeal is whether Ontario has demonstrated a constitutionally sound justification for pre-emptively banning all TTC strikes. The separate question of what evidence might be needed to justify back-to-work legislation once a TTC strike is underway is not before us, and I express no opinion about this.

[145] Ontario’s argument seems to be that because it may now be more difficult after SFL for the legislature to constitutionally justify back-to-work legislation, future TTC strikes may last longer than they once did, making it more likely that the harms the legislature was trying to prevent by banning transit strikes will materialize.

[146] However, even if one were to assume that a future TTC strike could eventually cause such severe harms that back-to-work legislation would become justified under s. 1, it does not automatically follow that this gives the legislature a proper s. 1 justification to pre-emptively ban all TTC strikes before they start.

[147] Importantly, the evidence that the application judge accepted supports the conclusion that pre-emptive strike bans have a different and more severe effect on the collective bargaining process than ad hoc back-to-work legislation that is enacted only after a strike is in progress.

[148] As Professor Hebdon noted in his report, the right to strike has a significant impact on the efficacy of collective bargaining:

Collective bargaining works when the parties (labour and management) can strike or lockout. Strikes or lockouts can impose significant losses on both parties thus creating the pressure to settle. Where the right to strike exists, there are negotiated settlements without a strike in over 95 percent of the cases. [Citation omitted.]

In other words, the mere possibility that there may be a strike or lockout if negotiations fail puts pressure on both sides to reach a negotiated agreement. Even if labour and management both assume that the legislature will eventually intervene to end any strike or lockout, their shared uncertainty about whether and when this might happen can maintain some of this pressure. Former ATU Local 113 President Bob Kinnear made this point in his affidavit evidence, stating that:

[B]argaining with a right to strike, even where back to work legislation may be imposed, puts the union and its members in a much more powerful position than bargaining when the union has been stripped of the right to strike.

[149] During the pre-TTC Act negotiating era, both sides knew that there was a good chance that any TTC strike or lockout would, if necessary, be ended relatively quickly by back-to-work legislation. However, the application judge accepted the evidence of Mr. Kinnear and the other union officials that the collective bargaining process between the TTC and its unions deteriorated once the TTC Act was enacted in 2011 and the right to strike was eliminated entirely.

[150] Having regard to the application judge’s factual findings, I am not persuaded that his assumption that future strikes would be short undermines his overall conclusion that Ontario had not met its s. 1 burden of justifying a full pre-emptive strike ban. Once a TTC strike has started, Ontario may be able to present better evidence about the actual impact of the strike on public health and safety, the environment, and the economy. Depending on what this evidence shows, Ontario may in the future be constitutionally justified in preventing these harms from continuing by ordering TTC employees back to work. However, the possibility that Ontario might eventually be able to justify ending a future TTC strike with back-to-work legislation does not imply that the application judge was wrong to find that Ontario had not met its burden of justifying the TTC Act’s pre-emptive strike ban, based on his assessment of how the deleterious impact of the ban on TTC employees balanced against the government’s interest in avoiding the public harms that might flow from a transit shutdown.