Ontario’s use of notwithstanding clause in dispute with union a ‘Pandora’s box,’ expert says


The Ontario authorities’s transfer to power school-support employees to remain at work through the use of the heavy hammer of the notwithstanding clause may have large repercussions on labour relations, specialists say.

“If the general public is sympathetic to the federal government [in this case], then the federal government’s actions may have set a important precedent for years to return,” stated Rich Appiah, a principal at Appiah Law Employment and Labour Counsel in Toronto.

Education Minister Stephen Lecce launched laws Monday afternoon to avert a looming strike and impose a four-year contract on about 55,000 schooling staff, together with librarians, custodians and early childhood educators, however not academics. Under the proposed laws staff may face fines of as much as $4,000 per day in the event that they strike.

The Canadian Union of Public Employees says it is going to be taking a look at each avenue to battle the laws, however the authorities says it intends to use the notwithstanding clause to maintain the eventual regulation in power regardless of any constitutional challenges.

The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, offers provincial legislatures the power, by way of laws, to override sure parts of the constitution for 5 years.

Noa Mendelsohn Aviv, the chief director of the Canadian Civil Liberties Association, stated in a assertion Monday that the clause was “by no means meant for use in contract negotiations, or as a informal device to disrupt primary human rights safeguarded in our Charter.”

“This misuse, and the flagrant disregard for particular person rights is flawed and it’s harmful to our constitutional democracy.”

‘The union is screwed’

CUPE stated the employees will stage a provincewide “protest” Friday — which means they are going to be off the job regardless of the laws.

Labour specialists had instructed CBC News earlier Monday that the federal government was prone to face a stiff and expensive authorized problem by forcing a contract on the union, however Appiah stated the federal government can pre-empt any courtroom problem by invoking the notwithstanding clause.

“I perceive that the … invocation of the notwithstanding clause is included in the laws, and that being the case, frankly, the union is screwed,” Appiah stated. 

WATCH | In a separate interview, Appiah spoke to CBC News Network: 

‘From a authorized perspective, this union is screwed’ if notwithstanding clause invoked, lawyer says

Rich Appiah, an employment and labour lawyer in Toronto, discusses the Ontario authorities’s laws designed to impose a contract on schooling staff represented by CUPE and the potential for its use of the notwithstanding clause to implement it.

From a authorized perspective, Appiah stated, the union’s solely choices are political: convincing stakeholders, group members and in the end voters to affix them in protest, in addition to strolling off the job illegally. 

“It’s taking away a constitutionally protected proper, and it will be as much as the folks to resolve whether or not they’re on facet with that,” he stated.

Public will resolve

How a lot this modifications labour relations will rely upon public response, he stated, noting that many individuals are drained of college closures as a result of COVID-19 pandemic.

“If the folks enable this to occur, I believe it’ll ship a sign to different provinces that they’ve the higher hand in negotiations with academic establishments, in addition to different public establishments,” he stated.

Appiah stated he does not essentially imagine meaning the clause, usually not often invoked, will change into commonplace now. For occasion, an infringement on minority rights would probably be met with a important “fracture” in society, he stated, and would due to this fact be averted.

This particular state of affairs — with its repercussions on schooling and the financial system — means it is a distinctive state of affairs the federal government could discover assist for.

“I do not suppose we will use the circumstances to extrapolate what the federal government may do in a broader circumstance,” he stated.

Labour lawyer Rich Appiah says how a lot the federal government’s use of the notwithstanding clause will change government-union relations is determined by the general public’s response. (Submitted by Rich Appiah)

David Doorey, a York University professor specializing in labour and employment regulation, stated there was just one different Canadian use of the notwithstanding clause in back-to-work laws — in Saskatchewan in the Eighties. But the regulation has modified dramatically since then.

“Today, the constitution protects a proper to collective bargaining and to strike,” he stated.

“As a consequence, the Ontario authorities requires the notwithstanding clause to guard itself from a lawsuit.”

Wildcat strikes may change into extra frequent

Andrew Monkhouse, a managing associate at Monkhouse Law in Toronto, stated the transfer takes away the historic compromise between unions and employers that make strikes authorized however predictable.

“I think about that in a world the place unions felt that historic compromise was not being adopted, they may select to resort [to] what can be referred to as a wildcat strike,” he stated.

Wildcat strikes normally discuss with strikes taken by staff with out being formally sanctioned by the union. Like wildcats, they’re unpredictable and onerous to regulate.

Unions would probably see the state of affairs as, “If they are not going to observe what [we] see because the regulation, we can’t both,” stated Monkhouse, an employment lawyer.

He stated additional fallout from the choice will rely upon how far the provincial authorities is keen to go. “I imply, are they actually going to be placing labour organizers in jail for occurring a strike after they’ve been legislated again to work underneath the notwithstanding clause?”

He stated as soon as the federal government opens the “Pandora’s field” of utilizing the notwithstanding clause throughout collective bargaining, it is going to be troublesome for unions to not take into account it half of each negotiation -— together with searching for assurances in their collective agreements that it’ll not be invoked.

Province could have averted massive authorized bill

Paul Champ, a constitutional and labour lawyer in Ottawa, stated the Supreme Court of Canada made it clear in 2007 and 2015 that the suitable to collective discount and to go on strike can solely be infringed on in very critical circumstances — and that that hadn’t occurred but in this case.

“There hasn’t actually been a elementary breakdown in negotiations,” he stated earlier than it was clear the province would use the notwithstanding clause. “The province hasn’t tried to return up with another method to arbitrate their disputes.”

The provincial authorities has not exhausted all avenues to resolve its dispute with schooling staff, in response to labour lawyer Paul Champ. (Jacques Poitras/CBC)

Lecce stated the federal government was keen to give annual raises of 2.5 per cent to staff making lower than $43,000, and raises of 1.5 per cent for all others. CUPE needed annual wage will increase of 11.7 per cent.

When the federal government forces a contract on workers, it normally means important payouts to staff later. Champ famous a case about a decade in the past involving the B.C. Teachers’ Federation. 

“The province was ordered to compensate academics going again years, not just for the worth of what their collective settlement may have been, but additionally different injury by way of the vindication of their constitution proper,” he stated. 

Education unions additionally gained a courtroom problem a number of years in the past in opposition to an Ontario Liberal authorities that had to pay greater than $100 million in cures.

Monkhouse stated this support-staff contract and its comparatively small 55,000 staff have outsized significance even with out the notwithstanding clause, as a result of they intersect with inflation, college closures, and future negotiations with a bigger numbers of staff.

“There’s a perverse incentive in opposition to the federal government exhibiting all of their leeway proper now, as a result of they are not essentially taking a look at this battle, which includes a smaller quantity of folks than some of the fights which are going to be occurring.” 


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