A pivotal victory

On April 20, 2016, Justice Thomas Lederer of the Ontario Superior Court of Justice issued a decision stating that, during the process of provincial negotiations between the Government of Ontario and various education sector unions that occurred in 2011–2012, Ontario had “substantially interfered with meaningful collective bargaining”, and in doing so had violated Section 2 (d) of the Canadian Charter of Rights and Freedoms. The decision is meaningful to all public sector unions, and those in Ontario in particular, and it is important to understand what the decision’s impact might be on future provincial negotiations. In order to gain that understanding, it is helpful to take a look at the process that led to the passage of Bill 115 (the Putting Students First Act), where the government “went wrong”, and how that might affect the provincial negotiation process going forward.

A recent history of government involvement in bargaining
OSSTF/FEESO is no stranger to the concept of provincial bargaining, or of the Government of Ontario playing some role in negotiations. We have seen it on a number of occasions in the past quarter-century.

In 1993, Bob Rae’s NDP government introduced the Social Contract Act, 1993 SO. 1993. As a result, an “Education Sector Framework” was established, and some would say bargained, provincially. The framework dictated elements that were required to be included in local agreements. Ultimately, the Social Contract resulted in a three-year wage and grid movement freeze for all OSSTF/FEESO members between 1993 and 1996, as well as mandatory unpaid days off, referred to as “Rae Days” at the time.

In 1997, the Harris Conservatives passed Bill 160, the Education Quality Improvement Act, 1997, which made changes to the Education Act, among others. Those changes resulted in the requirement that many OSSTF/FEESO Bargaining Units negotiate significant changes to the workload provisions in their collective agreements. More significantly in the long term, the Education Quality Improvement Act removed the ability of local school boards to be self-funded.

The transfer of funding authority to the provincial government through Bill 160 ultimately led the education sector to the circumstances that resulted in the Government of Ontario taking steps that were found to have violated the Charter rights of OSSTF/FEESO members. Because the government is now solely responsible for funding education in the province, any attempt to generate “savings” or spending reductions must necessarily be initiated provincially. This became obvious in 2008, when the first Provincial Discussion Tables (PDTs) were established. During this initial foray into provincial bargaining, participation in the process by unions was voluntary, and it resulted in OSSTF/FEESO and the government agreeing to certain provisions that would be included in local collective agreements.

The lead-up to Bill 115
Following the global financial crisis in 2007–2008, the Government of Ontario was posting large annual deficits, and the report of the Commission on the Reform of Ontario’s Public Services, commonly referred to as the Drummond Report, recommended significant cuts in a number of areas of the public sector, education included. As a result, the government targeted education as an area where substantial savings were necessary, and “parameters” were developed to generate those savings. These parameters, which included salary and grid freezes, as well as the elimination of sick leave banks and retirement gratuities, were presented to public education sector unions at the outset of the Provincial Discussion Table (PDT) process early in 2012. Naturally, this set the tone for the discussions, which proceeded differently than previous PDT discussions. Previous PDT discussions had provided OSSTF/FEESO with financial targets that were to be met. The “parameters” presented in 2012, on the other hand, laid out specific terms that were required to be included in collective agreements. Despite OSSTF/FEESO’s attempt to determine the financial targets that had generated the parameters, the government was either unable or unwilling to provide them, and we stepped back from the provincial table.

Over the following months, OSSTF/FEESO continued to propose alternatives to the government’s stated parameters, and repeatedly requested more information about the savings targets that needed to be met. The government would not retreat from its parameters, and continued to fail to provide any information about the dollar amount of the savings target attributable to OSSTF/FEESO. When Ontario released its budget on March 27, 2012, the document stated that the government “is prepared to propose necessary administrative and legislative measures” in situations where collective agreements that met the government’s deficit elimination plan could not be reached. Two days later, On March 29, 2012, the 2012–2013 GSNs (Grants for Student Needs) were released, and the reductions represented by the parameters had been built into school board funding. Other funding-related documents sent out over the ensuing months continued to reflect reductions in line with the government’s parameters. It was becoming abundantly clear to OSSTF/FEESO that the government had no interest in negotiating with education sector unions in order to address its financial woes, and was on an unstoppable course toward imposing its parameters through legislation.

Since the PDT process was still voluntary at that point, and with OSSTF/FEESO having stepped back from its voluntary participation, the option to begin local bargaining became more attractive, and OSSTF/FEESO served Notices to Bargain to school boards across the province. As one might expect, the Government of Ontario was concerned by the prospect of OSSTF/FEESO negotiating local agreements that were outside of its parameters, and directives were sent to school board chairs and directors by the Minister and Deputy Minister of Education discouraging them from participating in local bargaining, and indicating that any local bargaining that did occur must conform to the parameters. Given that the government’s directives to boards severely limited OSSTF/FEESO’s ability to engage in local negotiations, we returned to the PDT table in April 2012.

In an attempt to address the government’s vague and unquantified fiscal concerns, OSSTF/FEESO tabled a proposal that included terms that would generate cost savings equivalent to those produced by the government’s parameters, while avoiding the contract strips included in Ontario’s position. However, the government rejected the proposal because of its projected cost if applied sector-wide to all education sector employees. Again, it was clear that the government had no interest in engaging in meaningful discussion with OSSTF/FEESO. The union made several more appearances at the PDT in the following months, but the government continued to hold the position that it would only consider sector-wide savings, which OSSTF/FEESO, as only one of the unions in the sector, could not deliver. Furthermore, the government would not organize a meeting of the education sector unions.

Other education sector unions were experiencing similar problems in their PDT discussions. And although the government made minor revisions to its parameters, it remained firm in its position that the parameters were required to be included in any negotiated agreement.

The OECTA MOU and its impact
During the time that OSSTF/FEESO was attempting to find alternatives to the parameters, the Ontario English Catholic Teachers’ Association (OECTA) continued to negotiate with the government. Although the organization representing the employers of OECTA members, the Ontario Catholic School Trustees’ Association, withdrew from the negotiations due to concerns about some of the issues that were being pursued, Ontario and OECTA reached an agreement, and a Memorandum of Understanding (MOU) was signed. The MOU conformed with the government’s parameters, with several minor variations. Following the signing of the OECTA MOU, the government indicated to the other education sector unions that the MOU represented a “roadmap” to its desired savings. In OSSTF/FEESO’s meetings with the government soon afterward, Ontario’s representatives stated that the substantive aspects of the MOU were non-negotiable, since its application sector-wide would allow the government to achieve its savings target.

During the summer of 2012, Ontario communicated to school boards that any agreements reached should use the OECTA MOU as a guide. Further, the government advised that if boards were unable to reach local agreements prior to September 1, 2012, legislation would be introduced in order to prevent grid movement from occurring. Several other unions, the Association des enseignantes et des enseignants franco-ontariens (AEFO) and the Association of Professional Student Services Personnel (APSSP), reached agreements during the summer, using the OECTA MOU as their “roadmap.” The government’s actions served a silent notice that the remaining unions were to sign similar MOUs or be faced with having the parameters imposed on them
through legislation.

Bill 115—Putting Students First Act
With September 1 fast approaching, and facing the prospect of the increased cost resulting from the salary grid movement that many collective agreements provided for on that date, the Government of Ontario released the draft of Bill 115, Putting Students First Act on August 16, 2012. Bill 115 passed first reading on August 27, and second reading on the next day. After four and a half hours of public hearings, the bill went to third reading on September 10, and was passed and received royal consent on the next day, coming into
force immediately.

Bill 115 imposed a two-year restraint period on the education sector. It required that any collective agreement reached between an employer and a union after September 1, 2012 must be “substantively identical” to the OECTA MOU, and that any substantive terms of the MOU that were left out of an agreement were deemed to be included. Further, it stated that if agreements were not reached by December 31, 2012, a collective agreement could be imposed by regulation. Finally, it provided for severe limits on the rights of union members to strike. Although several small Bargaining Units were able to reach agreements in the fall of 2012, no major union signed an MOU until December 31, 2012, when Canadian Union of Public Employees (CUPE) reached an agreement with the government.

During the fall, OSSTF/FEESO had been concentrating its efforts in five school boards, but negotiations did not progress well, since neither the union nor the boards knew what savings would be required in order for an agreement to be approved by the government. It was virtually impossible to negotiate local collective agreements when the government was expressing required cost savings from a provincial perspective. Amid province-wide job action by its members, OSSTF/FEESO was able to reach tentative agreements with eight school boards. One agreement was ratified, one was rejected by the local membership, and the remainder were not taken to ratification because of changes made unilaterally by the Minister of Education.

As provided for in Bill 115, on January 2, 2013 the government imposed collective agreements on all OSSTF/FEESO Bargaining Units, as well as those Bargaining Units in other education sector unions that remained without agreements – the Canadian Auto Workers (CAW), the Elementary Teachers’ Federation of Ontario (ETFO) and the Ontario Public Service Employees Union (OPSEU). Although OSSTF/FEESO continued to negotiate through the spring, and ratified an agreement on April 18, 2013, the damage inflicted by Bill 115 had been done. OSSTF/FEESO’s ability to negotiate alternative measures to achieve the government’s fiscal objectives had been removed, and the parameters had been legislatively imposed.

The Charter Challenge
Subsequent to the passing of the Putting Students First Act, five of the affected unions filed a civil suit against the Government of Ontario, claiming that Bill 115 represented a violation of the unions’ and their members’ right to collectively bargain as protected in Section 2 (d) of the Charter of Rights and Freedoms. The court application involved OPSEU, OSSTF/FEESO, ETFO, Unifor and Canadian Union of Public Employees (CUPE), with the Ontario Public School Boards’ Association (OPSBA) joining as an intervenor. The case was heard at the Ontario Superior Court of Justice over a period of six days in December 2015, with Justice Thomas Lederer presiding. OSSTF/FEESO was represented in the matter by internal counsel Heather Alden, along with Susan Ursel and Karen Ensslen, of Ursel Phillips Fellows Hopkinson LLP. Justice Lederer was faced with making his decision in the wake of the new “Labour Trilogy,” a name applied to three relatively recent Supreme Court rulings that expanded the rights of Canadian workers to organize, bargain collectively, and engage in strike actions.

The applicant unions argued that, by imposing Bill 115, the Ontario government had violated their right of freedom of association under Section 2 (d) of the Canadian Charter of Rights and Freedoms, more specifically their right to bargain collectively with their employers. Ontario argued that it had not violated S. 2 (d), and that even if it had, any violation should be considered reasonable under Section 1 of the Charter, which states that the rights guaranteed by the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, their position was that imposing Bill 115 was a reasonable limit on OSSTF/FEESO members’ rights given the fiscal challenges faced by Ontario.

In reaching his decision as to whether or not Ontario had violated S. 2 (d), Justice Lederer paid particular attention to the degree to which the unions were able to engage in meaningful negotiations. The fact that Ontario imposed its “parameters” on the unions and would not entertain any variation on them was an important factor, as was the government’s refusal or inability to provide any individual union with its target savings amount, and its related insistence that any proposal put forward by a union would have to generate sector-wide savings sufficient to meet the government’s fiscal needs. In Lederer’s assessment, taken collectively, the actions taken by Ontario from the fall of 2011 until the passing of the Putting Students First Act were a violation of the applicants’ right to meaningful collective bargaining under Section 2 (d) of the Canadian Charter of Rights and Freedoms.

Next, Lederer examined the Putting Students First Act in order to determine if the Act, in itself, was a S. 2 (d) violation, and he found that it was. When Ontario was unable to convince education sector unions to enter into agreements that conformed to its parameters, it imposed the OECTA MOU on those unions through the PSFA. Furthermore, Ontario included provisions in the Act that gave the Minister, through the Lieutenant Governor in Council, the ability to prohibit or end strikes, which was a clear violation of S. 2 (d).

Ontario’s argument that it was justified by Section 1 in breaching the freedom of association was also unsuccessful. Lederer found that the government’s means to accomplish its fiscal goals were arbitrary and not rationally connected to its objectives. Further, the imposition of the Putting Students First Act did not meet the Section 1 requirement that any breach of the Charter must be minimally impairing. Finally, Lederer found that Ontario could have met its fiscal goals through either more targeted legislative or administrative action, or through fairer, meaningful collective bargaining.

The significance of the decision
Justice Lederer’s April 2016 decision was a resounding confirmation of workers’ rights. It reinforced and strengthened the principles established by the new Labour Trilogy. It underscored the principle that the freedom of association includes the right to meaningful collective bargaining, and that meaningful collective bargaining involves some amount of consultation between the parties to the negotiations, as well as some willingness to consider the positions of the other side. It also confirmed that the right to strike is fundamental to the freedom of association, and that the imposition of any limits on that right must be taken very seriously. It confirmed that governments cannot wield the hammer of legislation in order to resolve their financial issues without engaging all affected unions in the collective bargaining process.

What about the remedy?
It was recognized at the beginning of the judicial process that, should the Charter Challenge be lost, no remedy would be necessary, but if the application was successful, a number of days of legal argument would be needed in order for all parties to make their positions on remedy clear. Because of this Justice Lederer was asked only for a ruling on the question of whether or not Ontario had breached the Charter rights of the applicant unions. He was not asked to issue a decision on remedy. Instead, Ontario and the applicant unions were encouraged to seek their own resolutions, and to either advise the court when they had done so or to return to Justice Lederer to seek a decision on remedy.

Despite not making a remedy decision, Justice Lederer did provide some observations related to what might be taken into account once a remedy was considered. Among those observations was that the problem, as he saw it, was with the process used, and not the outcome achieved. Had a process been undertaken that did not violate the Charter, the outcomes could have been the same or similar to those that occurred. Also, Justice Lederer noted that it was not clear to him “what would be accomplished by any substantial or aggressive remedy.”

There was (and still is) little to guide the courts on what an appropriate remedy might be in such situations, other than the decisions in the saga of the British Columbia Teachers’ Federation (BCTF) v. British Columbia. In that case, the British Columbia government passed Bill 28 in 2002, which voided certain terms of the Collective Agreement, in particular those concerning class size and composition. BCTF challenged Bill 28 as being unconstitutional, and the issue was heard at the BC Supreme Court, which is the equivalent of the Ontario Superior Court of Justice, the level at which our Bill 115 Charter Challenge was heard. In 2015, the BC Supreme Court found in favour of BCTF, and declared Bill 28 unconstitutional. As a remedy, the BC government was given a year to draft new legislation in a way that did not violate BCTF’s Charter rights. There was no monetary aspect to the award to compensate for the breach of the BCTF members’ Charter rights or to compensate those who may have been adversely affected.

This decision is the closest precedent to OSSTF/FEESO’s position with the Bill 115 Charter Challenge. It would likely give Justice Lederer some guidance in determining what might have been an appropriate remedy in the Bill 115 case, and it confirms his observation that “any substantial or aggressive remedy” would be unlikely.

The BCTF decision was appealed, overturned, and appealed again. In the end, the Supreme Court of Canada found in favour of BCTF, but again the remedy ordered by the court did not include a monetary component.

All of this was taken into consideration when OSSTF/FEESO met with the Government of Ontario in order to discuss an agreement on remedy coming from Justice Lederer’s decision. Given that the BCTF decision at the BC Supreme Court was the only real precedent to indicate what we might expect from the courts, the option of negotiating a remedy outside of the courts was very attractive. And in the end, the negotiated remedy achieved an outcome that had not been possible for BCTF through the courts, namely some compensation for those OSSTF/FEESO members who were adversely affected by Ontario’s breach of their Charter rights.

What does it mean going forward?
The Lederer decision will have a lasting impact on public sector labour relations. It builds on the foundation created by Canada’s new Labour Trilogy, and will ensure that in the future, when Ontario sits down with public sector unions, despite any fiscal goals it may have, the process it uses to achieve those goals must involve meaningful collective bargaining. And public sector union members in Ontario will have their right to strike protected by the full weight of the Canadian Charter of Rights and Freedoms.