Ontario School Strike: Government's Use Of The Notwithstanding Clause — Again — Is An Assault On Labour Relations

The government of Ontario has passed imposing a four-year contract on 50,000 education support workers represented and making it illegal to strike.

The back-to-work legislation affects educational assistants, early childhood educators, librarians, administrative staff and custodians. It invokes the so-called notwithstanding clause to insulate the government from future judicial scrutiny.

With its additional imposition of a contract upon these workers, and the Ontario government's invocation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms , there's a lot to dissect in Bill 28.

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Most unionized workers have both a statutory and — as of 2015 — a in pursuit of a new collective agreement. Despite this, back-to-work legislation has been passed by governments of differing political stripes.

In their book chronicled the increasing use of back-to-work legislation. They coined the term“permanent exceptionalism” to describe what they saw as governments consistently characterizing particular labour disputes as exceptional to justify back-to-work legislation, even while leaving intact the overriding law permitting the strike.

Panitch and Swartz argued that this was a way for governments to avoid political fallout from simply denying the right to strike outright. Instead, they do it by stealth — case-by-case as apparent one-offs.

But with the right to strike now afforded Charter protection, governments have to think about the legal fallout too. Bill 28, after all, bears many of the hallmarks of Ontario's Putting Students First Act or .

Bill 115 was passed in 2012 under the Liberal government of Dalton McGuinty. It, too, pre-empted an otherwise lawful strike amid negotiations with the province's teachers. It also imposed a contract rather than leaving outstanding issues to a neutral third party.

It was four years later, requiring the government to to the workers whose Charter rights had been violated.

I have that some back-to-work legislation is . But Bill 28 would almost assuredly be unconstitutional — except for the invocation of the notwithstanding clause.

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The notwithstanding clause, or Sec. 33 of the Charter, permits governments to pass laws .

At first glance, this is perplexing. Why adopt a constitutional Bill of Rights that can be ignored? However, at the time of the Charter's creation, some provincial premiers were skeptical. They feared the dampening of their legislative supremacy via judicial overreach. Sec. 33 was the escape hatch offered to quell their fears.

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Québec had its own reasons for systematically attaching the clause to legislation in the Charter's early days given that it was the only province . Outside of that, however, Sec. 33 was rarely used in the first decades of the Charter — and doing so came to be understood by many as political suicide.

Its more recent invocation by governments in Ontario, Québec and Saskatchewan is concerning. Some fear it signals the move may soon .

Additionally, its pre-emptive use, as is the case with Bill 28, is particularly indicative of constitutional recklessness.

The working presumption when the Charter was being hammered out is that legislatures want to protect their citizens' rights. If true, it follows that the escape hatch of Sec. 33 is a device that should be used only after a law has been deemed unconstitutional.

This allows legislatures to review the courts' rationales with consideration and thoughtfulness before determining whether they should proceed nonetheless, reserving Sec. 33's use for exceptional circumstances.

There may be as to what may be deemed judicial overreach that warrants the use of Sec. 33.

But it's perhaps noteworthy that former Saskatchewan premier Allan Blakeney, , was concerned about socially conservative judges undoing progressive social legislation.

This phenomenon was at play in the so-called . What we would now consider basic employment standards laws were overturned on the basis that they contradicted the right of employers and employees to negotiate contracts.

Regardless of Blakeney's views on the notwithstanding clause, it's still hard to reconcile the initial purpose of Sec. 33 with its current potential use: to prevent 55,000 citizens, among the lowest-paid workers in Ontario's education sector, to seek restitution for the violation of their Charter rights that Bill 28 would likely cause.

Whatever we might think about whether Ontario is justified in preventing the workers' strike, neither the imposition of a collective agreement nor the invocation of Sec. 33 is necessary to meet the government's stated goal of avoiding a labour disruption.

In fact, it may have upped the ante. In addition to a vow by CUPE to strike, others have pledged .

It's mostly been right-leaning provincial governments that have recently invoked Sec. 33. However, it bears noting that if we normalize its use, we normalize it for governments of all political stripes.

While most contract negotiations are settled without labour disruption, the threat of disruption is used as leverage by unions to move past impasses where they occur.

Ontario Superior Court Justice Thomas Lederer, in his decision on Bill 115, said the province's labour relations are rooted in the notion that“the employer has power and the employee does not” and that narrows that power gap.

Threats of labour disruption act to motivate the parties, usually in the days and hours leading up to a strike deadline, to reach a settlement neither party would propose but both can accept.

Ontario Education Minister Stephen Lecce's stated refusal to unless it first calls off all job action is at odds with his stated intention to keep kids in school. It's also at odds with the very heart of our labour relations model.

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