Case In Point
Ontario Court Declares Back-To-Work Legislation in College Sector Constitutional
Date: July 11, 2024
The Ontario Superior Court of Justice has just released an important decision upholding the constitutionality of the Ontario government’s 2017 back-to-work legislation in the college sector. The legislation in question was the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017 (Act). The Act legislated the end to the longest college-sector strike in Ontario’s history in 2017 and ordered that the Ontario Public Service Employees Union (OPSEU) and the College Employer Council (CEC) resolve their collective bargaining differences by way of mediation-arbitration.
On July 11, 2024, the Court issued its decision in OPSEU v. Ontario, dismissing OPSEU’s application that the Act was an unjustifiable infringement of its members’ rights under section 2(d) of the Canadian Charter of Rights and Freedoms (Charter).
In this Case in Point, we discuss this decision and its implications for unionized employers in the college sector and beyond.
Background
The CEC is the collective bargaining agent for all 24 public colleges in Ontario, pursuant to the terms of the Colleges Collective Bargaining Act, 2008 (CCBA). In 2017, the CEC and OPSEU began bargaining for a renewal of their collective agreement. From the outset of bargaining, OPSEU sought significant structural changes to colleges’ governance. The CEC disagreed with certain proposals as a matter of principle and could not agree to them.
Unable to reach a new agreement, OPSEU’s members commenced legal strike action, which forced hundreds of thousands of college students at all 24 Ontario colleges out of the classroom. Lasting five weeks, this became the longest strike in college history.
Despite intervention by a Ministry of Labour mediator and personal appeals by the Premier of Ontario and the Minister of Colleges and Universities, the parties remained diametrically opposed and were unable to reach a deal. Both parties advised the Minister that they had reached a “deadlock.” Faced with this bargaining impasse, the CEC tabled a final offer to be voted on by OPSEU members. It was resoundingly rejected. The parties were at a stalemate, with no resolution in sight.
After five months of unsuccessful bargaining and almost five weeks of strike action, the government intervened as a “last resort” and introduced back-to-work legislation. The Act legislated an end to the strike and directed all outstanding issues between the parties to mediation-arbitration. The parties put their respective collective bargaining positions on outstanding bargaining issues to a skilled and experienced mediator-arbitrator (William Kaplan) who was empowered to decide the dispute.
On December 20, 2017, Arbitrator Kaplan issued an award which resolved the parties’ bargaining issues. In a public communication sent to its members, OPSEU described the award as “nothing short of historic.”
OPSEU then filed an application, submitting that the Act was an unjustifiable infringement of its members’ freedom of association rights under s. 2(d) of the Charter. The respondent (Ontario) and the intervenor (the CEC) took the position that there had been no infringement of s. 2(d), or, alternatively, that any infringement was justified under s. 1 of the Charter.
The Decision
Justice Morgan reviewed the landscape of bargaining in the college sector as well as the parties’ most recent bargaining history and concluded that the parties had, in fact, been deadlocked following the OPSEU members’ overwhelming rejection of the final offer tabled by the CEC. Despite OPSEU’s attempt to reframe the vote as a change in momentum for its members, Justice Morgan noted that it “takes two to negotiate” and the CEC had been unequivocally unwilling to move from its final position at the time that the Act was introduced by the government.
Justice Morgan held that, in the labour context, it is the right to meaningful collective bargaining that is the important aspect of freedom of association under the Charter, and not any particular model of collective bargaining. Moreover, he held that the freedom to associate and to engage in meaningful collective bargaining does not require parties to bargain indefinitely.
Justice Morgan concluded that the evidence in this case pointed towards a real impasse between the bargaining parties in the face of unprecedented strike action, which was headed towards a “critical tipping point” that would result in the loss of an academic year for hundreds of thousands of students. There was, in his view, no further opportunity for meaningful bargaining in the face of this deadlock.
Justice Morgan also distinguished this case from other right to strike cases based on the restraint and neutrality of the Act. He concluded that this case was different from those where the right to strike had been removed indefinitely, where there had been some prospect of continued negotiations at the time the strike was ended, and where the right to strike had been replaced by a process which led to a prescribed outcome in favour of one party.
In contrast to those cases, Justice Morgan noted that the Act had only legislated an end to the current strike, that it had prescribed a neutral mediation-arbitration mechanism in place of the strike, and that it had been implemented at a time when collective bargaining between OPSEU and the CEC had been “all but dead and buried.” In sum, the government’s actions in this case had not substantially interfered with any meaningful collective bargaining process afforded to OPSEU’s members.
Having concluded that there had been no Charter violation in this case, Justice Morgan nonetheless also conducted a s. 1 analysis, applying the well-known test set out by the Supreme Court of Canada in R. v. Oakes (Oakes).
On the first step of the Oakes test, Justice Morgan held that he had “no trouble concluding that the legislative objective of resuming classroom instruction at Ontario’s 24 colleges, and the consequent mitigation of the harm inflicted on students by a lengthy strike in those institutions, is pressing and substantial.”
On the second step of the test, Justice Morgan concluded that the Act was rationally connected to the government’s objective of resuming college instruction and salvaging the academic year.
On the third part of the test, Justice Morgan concluded that the mediation-arbitration mechanism put in place by the Act was minimally impairing of the rights of OPSEU’s members because it put in place an appropriate and neutral mediation-arbitration process, whichdid not dictate any particular outcomes.
Finally, on the proportionality stage of the Oakes test, Justice Morgan held that it was “self-evident” that the adverse impact to students of a lengthy strike would be severe, focusing on harms at the relevant time: “[t]he loss of a school year, like the loss of an opportunity or even the loss of a limb, can potentially be recovered or replaced down the road; but the loss was nevertheless harmful when experienced. Time may heal all wounds, but that does not mean that the wound was never inflicted and did not hurt.”
The application was therefore dismissed with costs in favour of the government.
Going Forward
The Court’s decision is an important addition to the Charter jurisprudence relating to the scope of, and appropriate limits that can be placed on, collective bargaining rights—including specifically in the context of “back-to-work” legislation. This decision confirms that not every interference with the right to strike will rise to a level of substantial interference with a meaningful process of collective bargaining. Rather, the assessment of whether s. 2(d) has been breached must be made on a case-by-case basis, with careful regard to the facts of each case.
The decision also reaffirms the value of a well-designed mediation-arbitration process as a powerful mechanism to resolve differences between bargaining parties. The importance of this form of dispute resolution cannot be discounted or overlooked.
This case was argued by Hicks Morley’s Frank Cesario, Eleanor Vaughan, and Danika Winkel on behalf of the intervenor, the CEC.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
