In ATU Local 113 v Her Majesty the Queen in Right of Ontario and Attorney General of Ontario, legislation was challenged that eliminated the right of all unionized TTC workers to strike, regardless of their position. The Court found an infringement of the section 2(d) Charter right to freedom of association due to “substantial interference” in meaningful collective bargaining, and no justification under section 1. In reaching its conclusion, the Court appeared to depart from prior decisions that afforded governments more room to regulate strikes in important public services.
The Toronto Transit Commission Labour Disputes Resolution Act, or the “TTC Act”, was initially enacted in 2011 by the Government of Ontario. It received Royal Assent on March 30, 2011, and eliminated the right of all unionized TTC workers to engage in strike activity of any kind. Prior to the TTC Act, labour relations between the TTC and its unions were governed by the Ontario Labour Relations Act, which allowed for strike activity.
ATU Local 113, CUPE Local 2 and a number of individual applicants (the “Applicants”) brought an Application to challenge the TTC Act on grounds of unconstitutionality. Their main argument was that the Act infringed section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”), in that its prohibition on striking substantially interfered with workers’ rights to meaningful collective bargaining.
In particular, the Applicants maintained that the right to strike is the “powerhouse” of collective bargaining and promotes the dignity of workers, allowing them to participate in matters that govern their working lives.
The Ontario government, conversely, argued that the TTC Act did not infringe section 2(d) because it replaced the right to strike with neutral and fair binding interest arbitration. Such arbitration, the government argued, maintained the “balance” between workers and employers, and allowed for meaningful collective bargaining.
In the alternative, the government argued that the legislation was justified under section 1, because it promoted the objective of preventing disruptions to the public transit service and any associated health, safety, environmental and economic concerns.
The Court summarized the main effects of the TTC Act’s provisions as follows:
- The removal of all TTC employees’ rights to engage in strike activity or other collective action, regardless of job held;
- The removal of the employer’s right to lock out employees and unilaterally change terms and conditions of employment;
- The provision of a mandatory binding interest arbitration process in the event of an impasse in bargaining; and
- The appointment of an arbitrator by joint agreement, or appointment of the same by the Ministry of Labour in the event of a disagreement.
The Court reviewed the parties’ submissions in light of the available bargaining history between the TTC and its workers before and after the implementation of the TTC Act, as well as the history of strike activity within the bargaining relationship. It also considered evidence on whether the TTC could appropriately be considered an “essential service”, ultimately finding that it was not.
Section 2(d) and the right to meaningful collective bargaining
The Court began by summarizing some of the foundational principles underlying section 2(d) Charter rights, such as the characterization of the right to strike as an “indispensable component” of collective bargaining, and its status as an “essential safety valve” aimed at achieving meaningful participation. It noted that in order for the Applicants to succeed, they would need to establish that the Act resulted in “substantial interference” with section 2(d) rights to a meaningful process of collective bargaining.
Expert evidence was provided regarding the effectiveness of binding interest arbitration as a replacement for strikes and lockouts. The experts agreed that interest arbitration could result in “chilling” and “narcotic” effects, but diverged on the issue of union democracy and participation.
The Court accepted that interest arbitration was “conservative in nature and fail[ed] to address important and complex issues”, and that the arbitration process under the TTC Act had been “extremely protracted”. It also stated that the loss of the right to strike affected other components of the employment relationship, such as dignity, autonomy, member involvement, the ability to reach voluntary settlements, and had a negative effect on the negotiating process.
The Court then concluded that the TTC Act had the effect of enyingemployees an equal footing with the TTC. On this reasoning, a section 2(d) Charter infringement was found.
No justification or saving under Section 1
The Court then examined whether, despite the violation of section 2(d) rights, the TTC Act could be justified under section 1 of the Charter. Section 1 provides that Charter-infringing legislation is permitted where it is demonstrably justified as a reasonable limit in a free and democratic society, and:
- Has a pressing and substantial objective;
- Has a rational connection between the object and measures taken to achieve it;
- Is minimally impairing; and
- Has its negative impact on Charter rights outweighed by its benefits.
Pressing and substantial objective
The Court did not dispute that the TTC is a critically important service and that the Act’s objective was to prevent disruptions in order to protect the public who rely on public transit. However, the Court determined that such an objective would only be pressing and substantial if the TTC were found to be an “essential service”. Relying on findings and recommendations of the International Labour Organization (“ILO”), the Court reasoned that an “essential service” must be defined strictly to include only services that are necessary for “the life, personal safety or health of the whole or part of the population”. The Court found that the Government of Ontario had failed to establish that the TTC met this strict test, noting that the ILO itself has not considered urban transit services to be essential.
The Court did find that a TTC strike could have a disproportionate effect on equity-seeking groups. However, because this issue was not mentioned in the preamble of the legislation, it was a post-facto objective that could not form the basis of a section 1 justification.
The Court concluded that because there was no pressing and substantial objective, the legislation could not be justified under section 1. However, it nonetheless considered the other factors of the Section 1 test and their application to the TTC Act’s unconstitutionality.
Rational connection between objective and means
The Court found that, if the objective was to be defined as “preventing the health and safety, economic and pollution effects of a TTC disruption”, the connection between the blanket removal of the right to strike and the objective was not clear. Additionally, the Court concluded that the speed with which the TTC Act was enacted reflected a lack of care in design, which, in turn, detracted from the presence of a rational connection.
The Court further noted that, by determining that every TTC worker was “effectively essential” and unable to strike regardless of job performed, the TTC Act was overbroad, without any mechanism to dispute this designation. It compared the contents of the TTC Act to those applying to employees of Metrolinx (under the Crown Employees Collective Bargaining Act), where a more tailored approach was adopted.
Finding that there was no evidence of consultation or study to identify other methods of achieving its objectives without completely removing the right to strike, the Court concluded that the TTC Act was a “blunt instrument”, and did not provide a tailored or nuanced approach to the issue. Accordingly, it was not minimally impairing.
Proportionality between salutary and deleterious effects
At this last step of the analysis, the Court focused on the effects of the legislation. As it had previously found under the “pressing and substantial objective” step, it did not consider a TTC strike indicative of “serious harm” or endangering the “life, personal safety or health” of the whole or part of the population. It also found the economic evidence relied on by the Government to be inadequate, and that while equity-seeking groups were likely to be more impacted by the effects of a TTC strike, an eliminated right to strike would also have a negative effect on equity-seeking groups within the TTC.
The Court additionally noted that the history of TTC strikes suggested that they were usually infrequent and of short duration. Accordingly, the relatively brief transit shutdowns expected to accompany possible TTC strikes would not outweigh the harm caused by the legislation to meaningful collective bargaining.
The Court therefore found that the legislation was not saved by Section 1. It declared the legislation unconstitutional and of no force and effect.
The Court‘s determination that the ILO’s definition of “essential services” should effectively control the application of Section 1 of the Charter is perhaps the most notable aspect of the decision, and one that justifies appellate review. Canadian governments have historically restricted strikes and lockouts in order to protect the public in broader circumstances than contemplated by the ILO’s very strict approach. If the Court is correct in its approach, then this will prohibit governments from intervening in the vast majority of work stoppages and will make it more likely that governments will invoke the Notwithstanding Clause (Section 33 of the Charter) in order to get around such a restrictive approach.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
The Firm gratefully acknowledge the assistance of Joanna Strozak, an Articling Student in the firm’s Toronto office.