OPSEU et al. v. Ontario
“Ontario over ran the rights of the employees”: Superior Court of Justice holds Bill 115 violates the Charter
In September 2012, the Government of Ontario passed Bill 115 – the so-called Putting Students First Act. Bill 115 required that any collective agreement negotiated between a school board and a teachers’ bargaining agent was required to be consistent with a memorandum of understanding the Government had negotiated with the Ontario English Catholic Teachers’ Association (OECTA). If they did not, a collective agreement consistent with the OECTA memorandum of understanding would be imposed by the Government. The same requirement applied to educational workers.
The Elementary Teachers Federation of Ontario and other education sector bargaining agents challenged Bill 115 under the Canadian Charter of Rights and Freedoms, arguing that it substantially interfered with collective bargaining between school boards and bargaining agents in the education sector.
Section 2(d) of the Charter, which guarantees freedom of association, protects a “meaningful process of collective bargaining”. As the Supreme Court of Canada has held, this includes the right of employees to join together to pursue workplace goals, make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should the employer not bargain in good faith.
On April 20, 2016, the Superior Court of Justice held that Bill 115 substantially interfered with collective bargaining contrary to s. 2(d) of the Charter.
In its lengthy and detailed reasons, the Court held that the Government’s process for collective bargaining was fundamentally flawed from the start:
From the beginning, the approach taken by Ontario impinged on free and open bargaining and interfered with the process of collective bargaining. The parameters limited the substance of the negotiations. The process required that the negotiations reflect sector-wide impacts, but the discussions involved only individual bargaining units (or groups of bargaining units …). 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.
The defining of the parameters and the limited nature of the discussions concerning their application, the narrowing of discussions that followed the OECTA agreement and the enforcement of those limits through the threat and passage of the Putting Students First Act serve to show that there was substantial interference with the process of collective bargaining such that there was a breach of the freedom of association.
The Court further held that the breach of s. 2(d) could not be saved under s. 1 of the Charter (as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society). The Court concluded that the way in which the Government interfered with meaningful collective bargaining was arbitrary and not carefully designed, and did not minimally impair the right. Finally, the benefits of Bill 155 weighed against its deleterious effects were not proportional. Rather, “in its desire to reach an end it had defined, Ontario over ran the rights of the employees.”
At the request of the parties, the Court did not determine what the remedy for the Charter breach should be. Instead, the parties will engage in discussions in an attempt to reach an agreement. If they are unable to agree, they may seek the assistance or determination of the Court.
Howard Goldblatt, Steven Barrett and Charlene Wiseman represented the Elementary Teachers’ Federation of Ontario in the case.