School Board Update
Ontario Tables Significant Legislation Impacting School Board Sector
Date: November 1, 2022
On October 31, 2022, the Ontario government introduced Bill 28, Keeping Students in Class Act, 2022 (Bill 28 or the Bill) which, if passed, would enact and implement new central terms for collective agreements between the Council of Trustees’ Associations and the Canadian Union of Public Employees (CUPE). These collective agreements would have a term of nearly four years, commencing on the date the Bill receives Royal Assent and expiring on August 31, 2026.
Text of Bill 28
Bill 28 includes additional terms beyond implementing the new central terms of the collective agreements between the Council of Trustees’ Association and CUPE. In particular, section 5 would provide that the local terms of the collective agreement that expired on August 31, 2022 would continue to apply, with the exception of local terms that have the effect of limiting the employer’s ability to implement a program to support employee attendance. Such local terms would be null and void.
In order to insulate the Bill from constitutional challenge, the Ontario government has invoked the “notwithstanding” clause of the Canadian Charter of Rights and Freedoms, stating that the Bill operates notwithstanding sections 2, 7, and 15 of the Canadian Charter of Rights and Freedoms. The Bill would also apply despite the Ontario Human Rights Code.
Section 6 of the Bill would have the effect of terminating any strike or lockout that may be in effect before the Bill receives Royal Assent. If the Bill receives Royal Assent while a strike is ongoing, each employee would be required to cease any strike and resume the performance of the duties of the employee’s employment. Under sections 7 and 8, strikes and lockouts are prohibited during the life of the new collective agreement.
If any person—including an employee or the bargaining agent, employee bargaining agency, employer, or employer bargaining agency—violates sections 6, 7, and 8, they would be guilty of an offence. Individuals would be liable for a fine of up to $4,000 per day, and in any other case (e.g. if CUPE is found to have called an unlawful strike), the fine could be up to $500,000 per day.
The Minister of Education would have the ability to make a complaint to the Ontario Labour Relations Board (OLRB) under section 100 of the Labour Relations Act, 1995 that there has been an unlawful strike. Bill 28 removes the requirement under section 45 of the School Boards Collective Bargaining Act, 2014 that the Minister seek the consent of the employer bargaining agency before making such a complaint.
The Bill also imposes limitations on the jurisdiction of the OLRB and arbitrators, as well as limits on causes of action.
Under section 14, the OLRB, an arbitrator, a mediator-arbitrator, arbitration board, or any administrative tribunal cannot inquire or make a decision as to whether a provision of the Bill, any regulations or actions taken under the Bill, or the new central terms are unconstitutional or in conflict with the Ontario Human Rights Code. The OLRB also cannot inquire or make a decision as to whether any action of the Crown or any of the Crown’s current or former ministers, agents, appointees, or employees under the Bill is unconstitutional or in conflict with the Human Rights Code.
Under section 15, there could be no cause of action or legal basis for a proceeding against the Crown or any of the Crown’s current or former ministers, agents, appointees, or employees as a result of the enactment, amendment, or repeal of any provision of the Bill or regulation under the Bill, or in establishing the central terms.
This section of the Bill includes a non-exhaustive list of potential causes of action that cannot be brought in relation to this Bill, including any proceeding in contract, restitution, unjust enrichment, tort, misfeasance, bad faith, trust, or fiduciary obligation.
Similarly, Bill 28 limits the ability for any application, claim, or complaint claiming any remedy or relief, including specific performance, injunction, declaratory relief, damages or any other remedy under any act or any form of damages or any other remedy or relief, or a claim to be compensated for any losses, including loss of earnings, loss of revenue or loss of profit.
More specifically, the Bill states that the enactment, amendment or repeal of any provision of the Bill or the making, amendment or revocation of any provision of a regulation made under the Bill, or the establishment of any provision of the new central terms, or anything done or not done to comply with the Bill, would not be an unfair labour practice as outlined under sections 17, 59, and 70 of the Labour Relations Act, 1995 or any provision of the School Boards Collective Bargaining Act, 2014.
If a party were to bring an action, application, claim, or complaint before the Bill receives Royal Assent and is deemed into force or after it is deemed into force, the Bill states that any such proceeding would be set aside without costs. Collectively, these sections serve to protect the Crown against any litigation or OLRB proceeding relating to the steps that the Crown took in connection with the enactment of the Bill.
Imposes New Collective Agreement
Among other things, the new central terms include the following:
- a salary increase of 2.5% for employees with the top end of their salary/wage grids below $43,000 annually and 1.5% for employees with the top end of their salary/wage grids above that amount for each year of the contract, with provision for a limited retroactive payment to September 1, 2022.
- an increase in benefits contributions resulting in a $6,120 annual employer contribution per employee by August 31, 2026
- funding through the Support for Students Fund
- modifications to sick leave and short-term disability leave plan provisions
- $4.5 million in funding for apprenticeship training
- an extension of modified job security provisions
The Bill is unprecedented in Ontario because it pre-emptively prohibits any CUPE strike without providing for interest arbitration to determine the contents of the central terms or local collective agreements. In contrast to the Putting Students First Act, 2012 (which was declared to be unconstitutional in 2016), the Bill would impose entire collective agreements without any mechanism for their negotiation, and thus ends both central and local bargaining for the 2022 round of bargaining for all CUPE bargaining units. This means that all new CUPE collective agreements would be comprised of (a) the central terms set out in Schedule 1 of the Bill, and (b) the local terms from the previous collective agreement, subject to the proviso that any local term that has the effect of limiting a board’s ability to implement an attendance support program is null and void.
It should also be noted the Bill states that the new collective agreements would be effective as of the day that it receives Royal Assent, which could be as early as Thursday, November 3, 2022. This would create a gap between the previous collective agreements, which expired on August 31, 2022, and the new collective agreements, that may have legal significance.
The Bill is also noteworthy due to the novel protections afforded to the Crown under sections 14 and 15. The Bill offers robust protection for the Crown and its agents in imposing the collective agreements, as well as in implementing the Bill itself. The protections outlined in some cases are likely included in response to previous decisions from the OLRB. For example, section 15 of the Bill may be an effort to preclude an unfair labour practice complaint against the Crown that is similar to the one that the Elementary Teachers’ Federation of Ontario brought in 2021 in relation to the revocation of Regulation 274 following the conclusion of the last round of central bargaining (see Elementary Teachers’ Federation of Ontario v The Crown in Right of Ontario as represented by the Ministry of Education, 2022 CanLII 35068).
We will be reviewing the central terms more closely and providing a further update in the coming days. We will also monitor Bill 28 and provide updates as they become available.
Editor’s Note: On November 3, 2022, Bill 28 received Royal Assent. On November 14, 2022, the Ontario government repealed Bill 28 and deemed it never to have come into force.
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