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Public-sector unions file evidence in Bill 124 Charter challenge

February 17, 2021

Steven Barrett comments on the Bill 124 challenge

Law Times has reported on the constitutional challenge brought by over 40 Ontario unions against provincial legislation that caps public-service compensation.  Bill 124, the so-called Protecting a Sustainable Public Sector for Future Generations Act, 2019, received Royal Assent in November 2019. It imposes a series of three-year “moderation periods,” where salary and total compensation for most hospitals, crown agencies, universities and other public service institutions is capped at one per cent per year.

Law Times spoke to Steven Barrett about the challenge, which alleges that Bill 124 breaches the right to free collective bargaining under the freedom of association guarantee in s. 2(d) of the Canadian Charter of Rights and Freedoms:

The coalition represents around 270,000 employees and is coordinated by the Ontario Federation of Labour. Teachers’ and nurses’ unions, the Ontario Public Service Employees Union and UNIFOR are also challenging the legislation, says Steven Barrett, lead counsel to the OFL coalition and managing partner of Goldblatt Partners LLP.

“One of the things that’s significant is that, as we’ve been living through the pandemic and seeing the incredible, the important and essential work that so many of broader public sector employees do, and the need for compensation levels that matches the value of that work, It’s sort of a cruel irony that the Ford government would be imposing restraints on the ability of those people even try to negotiate appropriate compensation,” says Barrett.

The legislation undermines the right to free bargaining, which the Supreme Court of Canada has repeatedly held is protected by s. 2(d) of the Charter, the freedom of association, says Barrett.

“Notably, the premier, just in the fall in talking about the health care workers, said it was up to him, he would pay them way more because they’re seriously underpaid,” he says. “Yet his own government has enacted legislation that prevents them from trying to negotiate appropriate increases to their compensation.”

The coalition points to last year’s ruling from the Manitoba Court of Queen’s Bench, which found similar legislation unconstitutional. Manitoba’s law, from 2017, set “sustainability periods” of four years, which froze compensation for two years and allowed for only a one-per-cent raise in the third and fourth year. The court found the Public Services Sustainability Amendment Act had “substantially interfered with a meaningful process of collective bargaining.”

“Not only is the legislation unconstitutional, but it doesn’t really make any practical or common sense either,” says Barrett.

Steven also comments on Bill 124 here:

Read the full Law Times article here.


Steven Barrett

Practice Areas

Constitutional Law, Labour Law