Premier Ford, notwithstanding | Heather MacIvor

By Heather MacIvor

Law360 Canada (November 11, 2022, 10:30 AM EST) --
Heather MacIvor
Heather MacIvor
It’s been a reassuring week for those of us who worry about the health of democracy and the rule of law. In the U.S. midterms, an unexpectedly large proportion of voters apparently rejected the Trumpist threat to the American constitutional order. More predictably, the Supreme Court decision in Dobbs motivated women to turn out for pro-choice candidates and initiatives (Dobbs v. Jackson Women's Health Org.). Abstract concerns about authoritarianism and the separation of powers are one thing. Losing a tangible constitutional right, without accountability or recourse, is something else altogether.

Which brings us to the Keeping Students in Class Act, 2022, S.O. 2022, c. 19, a.k.a. Bill 28.

Section 5 of the Act imposed new collective agreements on Canadian Union of Public Employees (CUPE) locals in the education sector. The Schedule to the Act (Letter of Understanding #13) imposed salary caps for each of the four years covered by the new agreements: 2.5 per cent for workers earning up to $43,000 per year or $25.95 an hour, and 1.5 per cent for those above the cut-off. Notoriously, s. 13(1) of the Act invoked the “notwithstanding clause” in s. 33(1) of the Canadian Charter of Rights and Freedoms to ward off court challenges to its constitutionality. The provision referred to “sections 2, 7 and 15” of the Charter, but its real target was the guarantee of associative freedom in s. 2(d).

Unlike freedom of religion and expression (ss. 2(a) and (b), respectively), courts initially construed freedom of association so narrowly as to render s. 2(d) all but meaningless. They apparently feared that a broad interpretation would confer constitutional protection on unions. The Supreme Court eventually acknowledged that the drafters of the Charter had expressly intended s. 2(d) to protect collective labour rights (Dunmore v. Ontario (Attorney General) 2001 SCC 94 at para. 37). Today, it is settled law that a statute or policy that “substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power” violates s. 2(d) (Mounted Police Association of Ontario v. Canada (Attorney General) 2015 SCC 1 at para. 71), as does a ban on otherwise lawful strikes without a meaningful alternative mechanism to resolve deadlocks (Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4).

Extending Charter protection to the process of collective bargaining does not tie the hands of governments and legislatures. It simply requires public sector employers (including school boards) to negotiate collective agreements in good faith. When a government exercises its law-making power to unilaterally impose a collective agreement on a public sector bargaining unit, it should be prepared to go to court to justify any infringement of s. 2(d) under s. 1 of the Charter. The Crown must establish on a balance of probabilities that the law serves a pressing and substantial objective, is rationally connected to that objective, and limits s. 2(d) as little as reasonably possible, and that its benefits outweigh the damage arising from the infringement. (R. v. Oakes, [1986] 1 S.C.R. 103). Is it too much to ask that governments publicly explain Charter violations and present evidence of their necessity and rationality? For the Ford government, the answer seems to be yes.

Bill 28 was not the Ford government’s first experience with s. 33. Since April 19, 2021, the Election Finances Act, R.S.O. 1990, c. E.7 has operated notwithstanding ss. 2 and 7-15 of the Charter (see s. 53.1). But this time, invoking s. 33 touched a nerve. The attack on the rights of CUPE education workers mobilized other unions, which formed an effective united front for the first time in years. Had the Ford government targeted highly paid and faceless public servants, the public reaction might have been muted. Instead they pitted parents against the nice people who care for their children and clean their classrooms, and who often live paycheque to paycheque. The resulting outrage was swift and predictable, and the premier quickly pledged to repeal the law and return to the bargaining table.

Why did the Ford government shoot itself in the foot by invoking s. 33? The decision was probably influenced by Ontario Public Service Employees Union v. Ontario (Minister of Education) [2016] O.J. No. 2109), in which Justice Thomas Lederer found that the Province had violated the collective bargaining rights of education unions (including CUPE) when it unilaterally imposed wage-restraining collective agreements — initially through an improvised and chaotic negotiation process, and then by enacting the Putting Students First Act, 2012, S.O. 2012, c. 11.

At the justification stage, he accepted that capping public sector wage increases during tough economic times was a pressing and substantial objective. But he found, on the record before him, that the government’s engagement with the unions was arbitrary rather than rational. The infringements of s. 2(d) were exacerbated by the Wynne government’s determination to invest millions in smaller class sizes and full-day kindergarten, while pleading that it could only afford nominal wage increases for teachers and support staff. The judge concluded (at para. 270) that, “The end sought by Ontario could have been achieved through more targeted legislative or administrative action and fairer, meaningful collective bargaining”.

The OPSEU judgment was a setback for the Ontario government, but it did not rule out the possibility of justifying future infringements of s. 2(d). Quite the contrary. The central issue at both the infringement and justification stages was not the unilateral imposition of collective agreements or wage restraints per se. Rather, it was the confusing and inconsistent process adopted by the government in the 2012 education sector negotiations. A more rational and transparent approach would likely have passed constitutional muster. If Ford’s team misread OPSEU as requiring the use of s. 33, they have only themselves to blame for the blowback.

Finally, a word about the notwithstanding clause itself. There have been some annoyingly foolish contributions to the public debate about s. 33, including the claims by some reporters that it lets “the provinces” bypass the Charter (the provision expressly applies to the federal Parliament, not just the legislatures). It has been asserted in some quarters that the notwithstanding clause should never have been included in the Charter in the first place. Fair enough, but the historical record is clear: without s. 33, there would be no entrenched Charter of Rights and Freedoms. Some critics have alleged that s. 33 was never meant to be used pre-emptively, a claim which has no basis in either the text of the provision or the leading case on its purpose and usage (the coincidentally styled Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712). And too many commentators have overlooked the sunset provision in s. 33(3), under which “notwithstanding” declarations cease to have effect after five years unless re-enacted (or previously repealed). The purpose of the sunset clause, and the requirement of an explicit “notwithstanding” declaration in s. 33(1), is to ensure that governments pay a political price for deliberately depriving people of their rights and freedoms. Premier Ford got away with invoking s. 33 in the Election Finances Act, so he apparently thought he could do it again. Fortunately, he was wrong.

Heather MacIvor is a content development associate at LexisNexis Canada. She has worked on numerous Halsbury’s Laws of Canada titles, including Administrative Law, Constitutional Law (Division of Powers), Crown, and Judges and Courts.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at or call 647-776-6622.