News & Events News Court of Appeal upholds Bill 124 decision

Court of Appeal upholds Bill 124 decision

February 12, 2024

Ontario Court of Appeal dismisses Government’s Bill 124 appeal

In November 2022, the Ontario Superior Court of Justice held that Bill 124 – the so-called “Protecting a Sustainable Public Sector for Future Generations Act, 2019” – violated s. 2(d) of the Canadian Charter of Rights and Freedoms.The Superior Court declared Bill 124 to be void and of no effect.

The Government appealed the decision to the Ontario Court of Appeal. The Court released its decision today.

A majority of the Court of Appeal dismissed the Goverment’s appeal, except as it affected non-unionized employees:

I would dismiss the appeal with one exception. I agree with the application judge that the Act violates the s. 2(d) rights of broader public sector represented employees in Ontario and that it is not saved by s. 1. Taking into consideration the context in which Bill 124 was introduced and the restraints imposed by the Act, I am satisfied that the Act substantially interferes with the respondents’ right to participate in good faith negotiation and consultation over their working conditions. The circumstances of this case are distinguishable from other cases where wage restraint legislation was deemed constitutional because, here, there was no meaningful bargaining or consultation before the Act was passed, the Act significantly restricts the scope and areas left open for negotiation in the collective bargaining process, there is no meaningful mechanism for collective agreements to be exempted from the Act, and public sector collective agreements to which the Act does not apply generally provide for higher annual wage increases than 1%. Further, I find that the Act is not saved by s. 1 of the Charter because it does not minimally impair the respondents’ right to freedom of association, and because the Act’s deleterious effects outweigh its benefits.

However, the application judge erred in declaring the entire Act unconstitutional. The Act applies to represented and non-represented employees in the broader public sector. Non-represented employees, given that they do not bargain collectively, do not benefit from the same protections as their represented counterparts under s. 2(d) of the Charter. Accordingly, the application judge’s declaration was overly broad, and should be limited to a declaration that the Act is unconstitutional in so far as it applies to represented employees.

Our summary of the Court of Appeal’s decision can be found here.

Our Bill 124 appeal team.