Ontario teachers’ unions have a strong legal case in the court challenge they launched Thursday against a law that interferes with their bargaining rights, says a constitutional law expert at Osgoode Hall law school.
But it lands on heavily disputed legal ground that makes a win far from certain, warned Professor Bruce Ryder of the York University law faculty.
“It’s hard to say how the court will rule because the right to collective bargaining under the Charter is so new, so heavily contested and so ill-defined, but I think they have a decent chance of winning,” said Ryder.
Hours earlier, the Elementary Teachers’ Federation of Ontario (ETFO) and three other education unions filed a notice of application at the Ontario Superior Court of Justice claiming Ontario’s new Putting Students First Act violates their constitutional right to collective bargaining.
The law, passed Sept. 11, imposes on teachers a two-year wage-freeze, reduces sick benefits and gives the province the right to stop a strike or job action without calling a vote in the legislature.
In protest, teachers at many schools have chosen not to run voluntary after-school programs, which in turn has battered morale at a number of schools.
“The law appears to interfere in the process of collective bargaining by freezing wages and dictating terms of employment, which gives the union a strong argument and puts the government on shaky legal ground,” said Ryder.
Premier Dalton McGuinty said Thursday he was “confident” the government’s legislation would survive any court challenge. However NDP Leader Andrea Horwath the government is recklessly gambling with the public purse by passing a wage freeze law that prompted lawsuits.
“In a couple of years we’re going to get a big bill in the mail,” she said, predicting the province will lose.
Because the legal precedents are so unclear, this case will be watched closely by labour lawyers across the country, said law professor Brian Langille of the University of Toronto. He said it will be interesting to see whether the courts uphold the right to strike as a constitutional right.
“The elephant in the room is the question of whether workers’ freedom to strike is protected under the Charter of Rights and Freedoms. The Supreme Court has said that freedom of association (guaranteed under the Charter) does include freedom to meaningful collective bargaining, but it explicitly left open a ruling on the right to strike,” said Langille.
“This is the big looming question in Canadian labour law and it was almost inevitable that a court challenge like this would arise.”
ETFO’s case was filed at the same time as similar lawsuits by the Ontario Secondary School Teachers’ Federation, the Ontario Public Service Employees’ Union and the Canadian Union of Public Employees, whose leaders held a symbolic press conference together Thursday outside the Ontario Superior Court of Justice in Toronto.
The Supreme Court of Canada first ruled in 2007 that the Charter’s protection of Canadians’ freedom of association includes the freedom to take part in meaningful negotiations with the employer. But a more recent ruling in 2011 seems to have backtracked somewhat on that decision, lawyers noted, leaving the ground murky and in need of clearing up.