Canada: Collective Bargaining Rights Affirmed: Putting Students First Act Is Ruled Unconstitutional

On April 20, 2016, the Ontario Superior Court of Justice declared the Putting Students First Act, 2012 (the "PSFA") unconstitutional.  In OPSEU v. Ontario,1 the Court held that the Ontario government infringed upon the right to freedom of association guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms2 (the "Charter") to unions in the publicly funded elementary and secondary education sector by interfering with the collective bargaining process in 2012. 

Background

In September 2012, the Government of Ontario passed Bill 115, the PSFA, which was designed to respond to the expiry of teacher collective agreements on August 31, 2012.  Upon expiry of the agreements, a "statutory freeze" pursuant to the Labour Relations Act, 1995 would have come into effect and would have led to a substantial increase in teacher compensation as of September 1, 2012 in accordance with existing salary grids. 

The PSFA applied, not only to teacher collective agreements, but also to teaching support staff, facilities and maintenance staff and all other unionized personnel.  The PSFA required any collective agreement negotiated after August 31, 2012 to be consistent with or substantially similar to a Memorandum of Understanding that was negotiated between the Government and the Ontario English Catholic Teachers' Association ("OECTA").  In addition, where a collective agreement could not be negotiated by December 31, 2012, the PSFA would impose the OECTA Memorandum of Understanding on the party.  Collective agreements were negotiated by some parties and imposed on the remaining parties.  The PSFA was subsequently repealed on January 23, 2013.

The applicant unions,3 representing teachers and other personnel employed by school boards, brought an application before the Superior Court challenging the constitutional validity of the PSFA.  Each union took the position that the Ontario Government imposed a process that breached their right to freedom of association guaranteed by section 2(d) of the Charter.

Superior Court of Justice Analysis

The Court held that the process undertaken by the Ontario government substantially interfered with a meaningful collective bargaining process, which is a right guaranteed by section 2(d) of the Charter.4 Justice Lederer held that from the outset the bargaining process was structurally flawed:

When reviewed in the context of the Charter and the rights it provides, it becomes apparent that the process engaged in was fundamentally flawed. It could not, by its design, provide meaningful collective bargaining. Ontario, on its own, devised a process. It set the parameters which would allow it to meet fiscal restraints it determined and then set a program which limited the ability of the other parties to take part in a meaningful way.5

When identifying the implications of imposing the OECTA Memorandum of Understanding on other bargaining groups, Justice Lederer stated:

...In the absence of data showing the contribution to the costs and potential savings of those units or groups, it was impossible for true collective bargaining to take place. The jettisoning of central bargaining in favour of using the OECTA agreement as a substitute was not just improvisation but a structural change. It took what had been identified as a voluntary process and made it obligatory. If a union did not take part, an agreement would be imposed. The change required the "volunteers" and those who had not taken part to conform to an arrangement they had no part in negotiating and no opportunity to take part in after the choice of voluntarily taking part was, effectively, removed.6

The Court further held that the breach of section 2(d) of the Charter could not be saved pursuant to section 1 of the Charter.  The Court held that the Government of Ontario unilaterally and arbitrarily imposed a model onto the applicant unions that was not carefully designed.  In addition, the Government's imposition of the agreements substantially interfered with the unions' rights to negotiate agreements that reflected their specific needs.  Finally, the benefits of the PSFA were not proportional to the deleterious effects.  The imbalance in the bargaining position of the parties and the Government's end goal "over ran the rights of the employees."  Justice Lederer concluded:

...The end sought by Ontario could have been achieved through more targeted legislative or administrative action and fairer, meaningful collective bargaining. The impact was not just on the economic circumstances of education workers but on their associational rights and the dignity, autonomy and equality that comes with the exercise of that fundamental freedom. ...7

Remedy

At the request of the parties, the Court did not determine a remedy for the Charter breach.  The parties agreed to engage in a private discussion to reach an agreement.  Justice Lederer emphasized that the parties need to find a balance of their interests:

... While the decision in this case has turned on the actions of Ontario, the search for the balance runs in both directions. ... The mark of success in finding the proper balance is positive, fair and meaningful collective bargaining. ...8

Conclusion

Given that the parties have agreed to try to negotiate a potential remedy, and new central collective agreements were recently finalized, the impact of this decision on school boards is not known at this stage.  The decision highlighted the acrimony between the Government of Ontario and the unions representing school board employees in the education sector.  Despite a new legislated collective bargaining process used in the recent round of bargaining, it would appear that positive relationships continue to be a challenge.

Footnotes

1 OPSEU v. Ontario, 2016 ONSC 2197 (CanLII).

2 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

3 Ontario Secondary School Teachers' Federation, Elementary Teachers' Federation of Ontario, Canadian Union of Public Employees, Ontario Public Service Employees Union, and Unifor (formerly, before their merger, the Canadian Auto Workers union and the Communications, Energy and Paperworkers Union of Canada).

4 Supra note 1 at para. 134.

5 Ibid at para 135.

6 Ibid at para 169.

7 Ibid at para 270.

8 Ibid at paras 274 and 276.

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