On November 29, 2022, the Ontario Superior Court released a decision by Justice Koehnen on the controversial Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124” or “the Bill”).
In Ontario English Catholic Teachers Assoc. v. His Majesty (“OECTA”), Justice Koehnen found that Bill 124 interfered with freedom of association rights protected by section 2(d) of the Charter of Rights and Freedoms (“the Charter”) and was not justifiable under section 1. In particular, he found that the Bill substantially interferes with collective bargaining rights which the Supreme Court of Canada has found are protected under s.2(d) of the Charter: see OECTA at paras 33-34. Justice Koehnen declared Bill 124 contrary to the Charter and “void and of no effect”.
The Ontario government has filed an appeal but did not seek a stay of the decision. The Bill remains void and of no effect. While at first glance this might appear a favourable outcome for employees and unions, this may be deceptive.
Some employees affected by Bill 124 may have ‘reopener clauses’ in their collective bargaining agreements (“CBAs”). Such clauses permit re-opening the CBAs to negotiate on certain issues or new terms, like wages. Unions, no longer constrained by the restrictions imposed by Bill 124, may take advantage of the OECTA decision to negotiate for, among other things, higher wages.
This may cause problems.
Unions and employees who invoke reopener clauses and manage to secure wage increases beyond the limits prescribed in Bill 124 may need to stop and go backwards in the event of a successful appeal. A similar problem may result in the event of further appeals beyond the Ontario Court of Appeal. The great effort by unions and labour relations departments to re-open and renegotiate agreements may be for naught. Concern about such wasted effort, and the implications of unwinding any decisions made at the bargaining table, may also factor into higher court decisions when a court weighs the implications of overturning the OECTA decision.
The result of the appellant’s decision not to seek a stay of the decision creates a higher degree of uncertainty for all parties involved. It remains to be seen whether the Ontario government will proceed with its appeal and what the ultimate outcome will be.
AJC
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