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Charter - s.1 Oakes - Proportionality. Ontario Public Service Employees Union v. Ontario (Attorney General)
In Ontario Public Service Employees Union v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissal of a labour union's application for "a declaration that Bill 178 [SS: 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017'] limited the rights of OPSEU members to freely associate in striking under s. 2(d) [SS: 'freedom of association'] of the Canadian Charter of Rights and Freedoms in a manner that could not be justified under s. 1 of the Charter, and a declaration under s. 52 of the Constitution Act, 1982 that Bill 178 is of no force and effect".
Here the court considered whether the 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017' (which was 'back-to-work' legislation) and which breached Charter s.2(d) ['freedom of association'], was justified under Charter s.1 [ie. was demonstrably justified] - here under the 'proportionality' element:2. Was There Proportionality Between Bill 178’s Objective and the Means Chosen to Achieve It?
[25] The second Oakes step is to determine whether there was proportionality between Bill 178’s objective of resuming college instruction and the means chosen to achieve it – ending the strike. This step engages three inquiries:(1) Rational connection: Is there a causal link between the pressing and substantial objective of resuming full operation of the colleges and the limit of ending the strike?
(2) Minimal impairment: Did ending the strike impair collective bargaining no more than was reasonably necessary to accomplish the objective?
(3) Proportionate effects: Is there proportionality between the deleterious effects on collective bargaining of ending the strike and the salutary effects of doing so? See Carter, at para. 94; K.R.J., at para. 58; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at paras. 38-39; and Hutterian Brethren, at para. 48.
[26] Although the content of the three inquiries has remained consistent, the relative weight of each has evolved.
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[28] With the continuing evolution of the Oakes test, minimal impairment no longer plays the dominant role, especially in areas where complex social policy is under consideration and significant court deference is accorded to the legislature. The proportionate effects inquiry has become weightier.
[29] The evolution of the law can be seen in the changes in Professor Peter Hogg’s longstanding text on constitutional law: Peter Hogg & Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2007) (loose-leaf 2025-Rel. 1). Professor Hogg originally took the position that the proportionate effects inquiry was “redundant”: at § 38:22. Latterly, Professor Wade Wright, the current editor, favours what he calls a “competing view”, that “while it may change the outcome only rarely, it nonetheless still has an important role to play, and may change the outcome in some cases”: at § 38:22. This evolution is seen in the cases as well: see Hutterian Brethren, at paras. 75-78, per McLachlin C.J., and at para. 149, per Abella J. (dissenting, but not on this point); and Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 46. The idea that the proportionate effects inquiry was redundant was not accepted elsewhere: see Guy Régimbald and Dwight Newman, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis Canada, 2017), at §§ 20.32-20.33; Dwight Newman, Halsbury’s Laws of Canada, “Constitutional Law (Charter of Rights)”, (Toronto: LexisNexis Canada, 2023 Reissue), at HCHR-23; and Michael Plaxton, Sovereignty, Restraint, & Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law, 2019), at pp. 64-65. . 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 considers the Charter s.1 'proportionality' (of the impugned statute) element:(2) Proportionality
[97] The second stage of the Oakes test requires courts to assess whether “the means chosen [to achieve the legislature’s objectives] are reasonable and demonstrably justified”: Oakes, at p. 139. This involves “a form of proportionality test”, in which courts must consider: (i) whether the means chosen are rationally connected to the objectives; (ii) whether they impair the right at issue as little as possible; and (iii) whether the salutary effects of the legislation outweigh its deleterious effects. The party seeking to uphold legislation – usually the government, and here, Ontario – must succeed on all three branches of the proportionality test.
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