“If the people are sympathetic to the government [in this case]then the government’s actions will have set an important precedent for years to come,” said Rich Appiah, principal at Appiah Law Employment and Labor Counsel in Toronto. Education Minister Steven Lecce introduced legislation Monday afternoon to avert an impending strike and impose a four-year contract on about 55,000 educators, including librarians, custodians and early childhood educators, but not teachers. Under the proposed legislation, workers could face fines of up to $4,000 a day if they strike. The Canadian Union of Public Employees says it will consider every avenue to fight the legislation, but the government says it plans to use the nullity clause to keep the potential law in place despite constitutional challenges. The extension clause, or section 33 of the Charter of Rights and Freedoms, gives provincial legislatures the ability, through legislation, to override certain parts of the charter for five years. Noa Mendelsohn Aviv, the executive director of the Canadian Civil Liberties Association, said in a statement Monday that the clause was “never intended to be used in treaty negotiations or as an occasional tool to disrupt basic human rights enshrined in our Charter.” “This abuse and blatant disregard for individual rights is wrong and dangerous to our constitutional democracy.”
“The union is broken”
CUPE said workers will stage a “protest” across the province on Friday – meaning they will walk off the job despite the legislation. Labor experts had told CBC News earlier Monday that the government is likely to face a tough and expensive legal challenge to enforce a contract on the union, but Appiah said the government could pre-empt any legal action by invoking the illegal clause. “I understand that the … invocation of the illegal clause is in the legislation and that, frankly, the union is wrong,” Appia said. WATCHES | In a separate interview, Appiah told CBC News Network:
“From a legal point of view, this union is screwed” despite invoking the clause, lawyer says
Rich Appiah, an employment and labor lawyer in Toronto, discusses Ontario government legislation designed to enforce a contract on CUPE-represented teachers and the possibility of using the clause to enforce it. Legally, Appiah said, the union’s only options are political: to convince stakeholders, community members and ultimately voters to join them in protest, as well as walk off the job illegally. “It takes away a constitutionally protected right and it will be up to the citizens to decide whether they stand by it,” he said.
The audience will decide
How much this will change labor relations will depend on the public’s reaction, he said, noting that many people are tired of school closures due to the COVID-19 pandemic. “If people allow this to happen, I think it will send a message to other provinces that they have the upper hand in negotiations with educational institutions, as well as other public bodies,” he said. Appiah said he doesn’t necessarily think that means the clause, usually rarely invoked, will now become commonplace. For example, a violation of minority rights would likely be met with a significant “rift” in society, he said, and therefore avoided. This particular situation – with its implications for education and the economy – means that it is a unique situation for which the government can find support. “I don’t think we can use the circumstances to calculate what the government might do in a wider circumstance,” he said. Labor lawyer Rich Appiah says how much the government’s use of the clause will change government-union relations depends on public response. (Submitted by Rich Appiah) David Doorey, a York University professor specializing in labor and employment law, said there has been only one other Canadian use of the clause in back-to-work legislation – in Saskatchewan in the 1980s. But the law has changed dramatically since then. “Today, the charter protects the right to collective bargaining and to strike,” he said. “As a result, the Ontario government requires the non-applicability clause to protect itself from a lawsuit.”
Wildcat strikes could become more common
Andrew Monkhouse, managing partner at Monkhouse Law in Toronto, said the move removes the historic compromise between unions and employers that makes strikes legal but predictable. “I imagine that in a world where unions feel that the historic compromise is not being followed, they may choose to resort to [to] what would be called a wildcat strike,” he said. Wildcat strikes usually refer to strikes carried out by workers without official union approval. Like wildcats, they are unpredictable and difficult to control. Unions would probably see the situation as: “If they are not going to follow what [we] like the law, neither will we,” said Monkhouse, an employment lawyer. He said the further ramifications of the decision will depend on how far the provincial government is willing to go. “I mean, are they really going to put labor organizers in jail for striking when they’ve been legislated to go back to work under the void clause?” He said that once the government opened the “Pandora’s box” for the use of the clause in collective bargaining, it would be difficult for unions not to consider it part of every negotiation – including seeking assurances in their collective agreements that they would not invoked.
The province may have avoided a big legal bill
Paul Champ, a constitutional and labor lawyer in Ottawa, said the Supreme Court of Canada made it clear in 2007 and 2015 that the right to collective bargaining and to strike can only be infringed in very serious circumstances — and that it had not it still happened in this case. “There was no real breakdown in negotiations,” he said before it became clear the province would use the clause regardless. “The province has not tried to find some other way to resolve its differences.” The provincial government has not exhausted all options to resolve its dispute with education workers, according to labor lawyer Paul Chubb. (Jacques Poitras/CBC) Lecce said the government was willing to give 2.5 percent annual raises to workers making less than $43,000 and 1.5 percent raises to everyone else. CUPE wanted annual wage increases of 11.7%. When the government imposes a contract on employees, it usually means significant payments to employees later. Champ noted a case from about a decade ago involving the BC Federation of Teachers. “The province has been ordered to compensate teachers going back years, not only for the value of their collective agreement, but also for other damages through the mitigation of their charter right,” he said. Education unions also won a lawsuit several years ago against an Ontario Liberal government that had to pay more than $100 million in legal remedies. Monkhouse said this support staff contract and its relatively small 55,000 workers matter a lot even without the clause because they intersect with inflation, school closings and future negotiations with more workers. “There’s a perverse incentive against the government showing all its leeway right now because it’s not necessarily looking at this race, which involves a smaller number of people than some of the races that are going to happen.”
