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Charter - s.1 Oakes Test - General

. Amalgamated Transit Union, Local 113 v. Ontario

In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].

Here the court, after holding that the TTC-labour statute violated Charter s.2(d), summarizes to the classic Charter s.1 Oakes analysis:
D. Is the breach of s. 2(d) justified under S. 1 of the Charter?

[65] Once it is determined that the TTC Act violates s. 2(d) of the Charter, the burden shifts to Ontario to justify the infringement under s. 1.

[66] The framework for deciding whether legislation that breaches a Charter right can be justified under s. 1 is well-established. As Karakatsanis and Martin JJ. explained in their majority reasons in R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285, at paras 118-19:
To meet its burden under s. 1, the Crown must show the infringement is “demonstrably justified”, which means the infringing measures must be justified based on a “rational inference from evidence or established truths.” Bare assertions will not suffice: evidence, supplemented by common sense and inference, is needed.

A breach of the Charter is justified under s. 1 when the challenged law has a “pressing and substantial object and . . . the means chosen are proportional to that object.” The law is proportionate where the means adopted are rationally connected to the law’s objective, minimally impairing of the right in question, and the law’s salutary effects outweigh its deleterious effects. [Citations omitted.]
. Ontario English Catholic Teachers Association v. Ontario (Attorney General)

In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly dismissed) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.

In these quotes, the court generally considers the s.1 Charter Oakes 'balancing' test - here after finding a s.2(b) freedom of association violation:

[146] Section 1 of the Charter provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

[147] Once a law has been found to violate a Charter right, the government bears the onus of establishing that the law is a reasonable limit on that right. This must be shown on a balance of probabilities: Health Services, at paras. 138-39.

[148] The test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, applies to deciding whether a law is saved by s. 1 of the Charter. The government must first establish that the impugned law pursues a pressing and substantial objective. Next, the government must establish that the objective of the law is proportional to the means chosen to achieve the objective. This aspect of the test has three components. First, there must be a rational connection between the pressing and substantial objective and the means chosen to achieve the objective. Second, the law must be minimally impairing. Third, the salutary effects of the law must be proportional to its deleterious effects. Further, “the Oakes test must be applied flexibly, having regard to the factual and social context of each case”: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 132.

[149] In Health Services, at para. 108, the Supreme Court explained that, in the context of a law infringing the right to collective bargaining under s. 2(d) of the Charter:
[Section 1] may permit interference with the collective bargaining process on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crisis.
[150] As discussed below, I find that the Act is not saved by s. 1 of the Charter. I accept that Ontario has established that the Act has a pressing and substantial objective. However, while I find that the objective is generally rationally connected to the Act, I do not find that the objective is rationally connected in its application to workers in the electricity sector, namely the members of the Society of United Professionals and PWU, or to the members of the Carleton University Academic Staff Association and academic staff at other universities. In addition, I am not persuaded that the Act minimally impairs the respondents’ collective bargaining rights or that its salutary effects are proportional to its deleterious effects. I address each of these issues below.


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Last modified: 26-05-24
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