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Ford government plans to appeal after Ontario court strikes down Bill 124

cbc.ca logo cbc.ca 2022-11-29 CBC/Radio-Canada
Registered practical nurses, PSWs, hospital cleaners and others held a news conference and delivered postcards to the Ontario government calling for the repeal of Bill 124 in February. © Susan Goodspeed/CBC Registered practical nurses, PSWs, hospital cleaners and others held a news conference and delivered postcards to the Ontario government calling for the repeal of Bill 124 in February.

The Ford government plans to appeal an Ontario court decision striking down a law that limited wage increases for public sector workers, more commonly known as Bill 124.

A spokesperson for Attorney General Doug Downey told CBC News the province is reviewing the decision and that its intention is to appeal. 

A decision released Tuesday from the Superior Court of Justice said the Protecting a Sustainable Public Sector for Future Generations Act violated the Charter of Rights and Freedoms.  

The act, the ruling said, "is not a reasonable limit on a right that can be demonstrably justified in a free and democratic society under s.1 of the charter."

Groups representing several hundred thousand public sector employees challenged the constitutionality of the 2019 law that capped wage increases for Ontario Public Service employees as well as broader public sector workers at one per cent per year.

Justice Markus Koehnen said the law infringes on the applicants' rights to freedom of association and collective bargaining, in a manner he called "substantial interference." 

As part of the decision, Koehnen said Ontario has not explained why it was necessary to infringe on constitutional rights to impose wage constraints while at the same time providing tax cuts or licence plate sticker refunds more than 10 times larger than the savings from the wage-restraint measure.

Koehnen added he is "mindful" of an appeal court ruling that "judges ought not to see themselves as finance ministers." 

Still, he said he was bound by decisions by the Supreme Court of Canada that guarantee a constitutional right to collective bargaining.

As a result, the act is "to be void and of no effect," Koehnen said.

The judge also said Ontario was free to take the position in collective bargaining that it could not pay more than one per cent in wage increases. Instead, it appears Ontario was reluctant to take that position because it could lead to strikes, the decision said.

"As noted, the right to strike is constitutionally protected," Koehnen wrote. "Although inconvenient, the right to strike is a component of a free and democratic society."

Don't appeal decision, groups tell province

The Ontario Secondary School Teachers' Federation (OSSTF), one of the applicants in the case, tweeted it was pleased with the decision.

"This ruling validates the rights of workers to free and fair bargaining," the OSSTF tweeted. Teachers are currently in talks for new contracts with the government and OSSTF president Karen Littlewood said she hopes this round sees free and fair collective bargaining. 

The Elementary Teachers' Federation of Ontario also tweeted in support of the decision.

The Ontario Federation of Labour (OFL) tweeted out a graphic reading: "Victory."  Steven Barrett, a lawyer for the OFL and workers in the broader public sector, said the decision was a "complete vindication" for unions.

The Ontario Nurses' Association tweeted in reaction to the news, "Nurses are demanding the government respect the court's decision." The group added it will be looking to reopen the contracts affected by Bill 124.

In a statement following the decision, NDP Leader Peter Tabuns said, "My message to Ford is simple: do not appeal this decision."

Tabuns called the decision a "victory," saying the act brought "untold damage on our precious public services."

Liberal interim Leader John Fraser also said in a statement, "Doug Ford needs to accept the court's ruling."

Fraser added that the news of the decision comes on the same day that the Financial Accountability Office announced the province underspent approximately $859 million on health over the past year. 

Green Party Leader Mike Schreiner called on the Ford government not to "waste any more taxpayer money" on the legislation and to promise not to appeal the decision. 

"It's time to consign Bill 124 to the dustbin of history and start investing in the people who care for us every day," Schreiner said. 

Employment lawyer Rich Appiah told CBC Radio's Here and Now he believes the government will face "an uphill battle" in overturning the ruling.

Moreover, it remains to be seen if the government decides to invoke the notwithstanding clause of the Charter — something it recently used in an effort to prevent Ontario education workers from striking, before later repealing Bill 28.

In that case, Appiah pointed out, "the government faced wide public outrage from unions across all sectors including public and private sectors... so I think the government will be well-counselled to look for other options."

Overturning law could cost $8.4B over 5 years: FAO

Unions representing government workers, teachers, nurses and university faculty members argued the law had taken away meaningful collective bargaining, thereby violating the Canadian Charter of Rights and Freedoms. The province argued the law did not infringe on constitutional rights.

The provisions of the bill were to be in effect for three years as new contracts were negotiated, and the Tories had said it was a time-limited approach to help eliminate the deficit.

The case was heard for two weeks in September. 

The court heard the law affected more than 700,000 workers in the province. It did not apply to municipalities, First Nations and Indigenous communities, and for-profit companies. 

In September, the Financial Accountability Office said Bill 124 would save the province $9.7 billion in public-sector salaries and wages. But if the law was overturned and repealed, it could cost the province $8.4 billion over five years, including a potential $2.1 billion in retroactive payment to the majority of workers already affected by it, the FAO said.

Health-care workers have long called for Bill 124 to be repealed. They've also said it has contributed to the health-care crises in Ontario, which has seen nurses and personal support workers recently leave the profession in droves.

The province had argued it was under severe financial strain when it implemented the new law.

The judge disagreed. 

"On my view of the evidence, Ontario was not facing a situation in 2019 that justified an infringement of charter rights," Koehnen said.

"In addition, unlike other cases that have upheld wage restraint legislation, Bill 124 sets the wage cap at a rate below that which employees were obtaining in free collective bargaining negotiations."

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