Ontario Government tables legislation to prohibit strike or lockout

November 1, 2022 | Gillian Tuck Kutarna, Nadya Tymochenko, Renata Antoniuk

On October 31, 2022, the Ontario government introduced Bill 28, Keeping Students in Class Act, 2022. If passed, this legislation would prohibit CUPE workers (approximately 55,000 Ontario education workers, including educational assistants, custodians, librarians, and early childhood educators) from striking (which is planned for November 4) and would statutorily impose a new collective agreement on them. The legislation is intended to prevent and prohibit a strike or lockout during the term of the contract, invoking the notwithstanding clause in the Canadian Charter of Rights and Freedoms to accomplish this goal.

New collective agreement

Bill 28 would impose a new four year contract on CUPE workers expiring August 31, 2026. The new contract would include the new central terms, attached as Schedule 1 to Bill 28. The new agreement would provide an annual salary increase of 2.5 per cent for employees making less than $43,000 annually, and 1.5 per cent for employees making above that amount.

Prohibition on strikes and lock-outs

Bill 28 would terminate any ongoing strikes and lock-outs occurring at the time the legislation is passed, and would prohibit future strikes and lock-outs during the term of the contract. Individuals who fail to comply would be faced with fines of up to $4,000 a day. This fine would apply not just to striking employees, but could also apply to school board officers who “counsel, procure, support, authorize, threaten or encourage” a lock-out during the term of the new collective agreement.

School boards would be under a positive obligation to use all reasonable efforts to resume any operations interrupted during any strike or lock-out and would also be prohibited from locking out employees during the term of the new agreement. School boards and the union could face fines of up to $500,000 for failing to comply with the provisions prohibiting strikes and lock-outs.

Charter and Human Rights implications

Section 13 of Bill 28 provides that the proposed legislation and any future regulations made under it would apply notwithstanding a violation of the Charter or the Human Rights Code.

The freedom of association found in section 2(d) of the Charter has, over the past two decades, been recognized to protect both a right to collective bargaining (see OPSEU v Ontario, 2016 ONSC 2197 (CanLII) which struck down the Putting Students First Act) and a right to strike (see Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4). Bill 28 seeks to use the notwithstanding clause found in section 33 of the Charter, which permits a government to temporarily (for renewable 5 year periods) breach a right protected pursuant to the Charter. This would be the first time an Ontario Government used the notwithstanding clause in the context of labour relations.

Bill 28 also includes a provision exempting it from the Human Rights Code. As approximately 70% of CUPE’s members are female, the government might be attempting to prevent a gender discrimination application similar to that of Ontario midwives who were found by the Human Rights Tribunal of Ontario (upheld by the Ontario Court of Appeal) to have experienced gender-based discrimination with respect to compensation.

Statutory conflict

In the event of a conflict between Bill 28 and the School Boards Collective Bargaining Act, the Labour Relations Act, 1995 or the Education Act, Bill 28 includes language indicating that it would prevail.

Takeaway

If passed, CUPE would not be permitted to strike, and if members do go on strike, they will face the potential of significant fines. School boards will not be permitted to impose a lock-out, and will face a positive obligation to use reasonable efforts to resume school operations, if schools have to be closed as a result of a strike.

Please contact a member of Miller Thomson’s Education Law Group if you have any questions.

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