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Bill 124 Appeal

In a decision released November 29, 2022, the Ontario Superior Court of Justice struck down as unconstitutional the “Protecting a Sustainable Public Sector for Future Generations Act” (Bill 124) which imposed a three-year wage suppression period that limited wage increases for almost 800,000 workers in the broader public sector to 1% per year. The Court found that the law substantially and unjustifiably interfered with employees’ right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms, which includes the fundamental right of unionized workers’ to collectively bargain and to strike. In its decision, the Court rejected the Government’s claim that Bill 124 was necessary because of Ontario’s financial situation in 2019.

The day the decision was issued, the Government said they planned to appeal. Justices Doherty, Hourigan and Favreau presided over the hearing of this appeal in the Court of Appeal for Ontario over three days, June 20-22, 2023.

The Crown argued that Bill 124 did not substantially interfere with the right to bargain collectively protected by s.2(d) of the Charter, and in the alternative that the restrictions on collective bargaining rights were justified by the Crown’s objective to restrain wages to ensure responsible fiscal management and protect the sustainability of public services. The Crown also argued that the right to strike was not impacted by Bill 124 as a residual right remained.

The unions worked collaboratively to respond to the Crown’s appeal, dividing arguments and building on one another’s submissions to underline key arguments for the Court. The unions highlighted for the Court of Appeal the complex facts in this case, and the need to defer to the findings of fact made by the trial judge. Each respondent union explained how Bill 124 interfered in their bargaining processes, with OSSTF/FEESO emphasizing how the Bill effectively took wages off the bargaining table, impacting bargaining on other significant issues where the Crown was seeking rollbacks, such as on class size and job security. The OSSTF/FEESO also argued that the Bill effectively curtailed and infringed upon the right to strike and that this was the intent of the legislation. The unions worked together to underline how unremarkable the economic situation was in 2019 when the Bill was passed and the detrimental implications if violations of Charter rights could always be justified in the name of fiscal prudence and absent an actual crisis. The unions further emphasized that voluntary collective bargaining could have been used to achieve wage restraint, which was a less-rights impairing alternative to achieve the Crown’s objective.

The Court of Appeal reserved its decision, which is expected to be issued within the next 6 months. Depending on the decision of the Court of Appeal there may be an application to the Supreme Court of Canada by either side.

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