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Charter - s.1 Oakes Test - Rational Connection

. 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 'rational connection' element of the Charter s.1 proportionality test:
(1) Rational connection

[98] At the rational connection stage of the Oakes proportionality analysis, the government bears the burden of showing “a causal connection between the infringement and the benefit sought on the basis of reason or logic”: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 153. As McLachlin C.J.C. noted in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48, “[t]he government must show that it is reasonable to suppose that the limit may further the goal, not that it will do so.”

[99] In OECTA, at para. 187, Favreau J.A. explained that “[t]he evidentiary burden at this stage is ‘not particularly onerous.’ Direct proof of a causal relationship between the measure and the objective is not required” (Citations omitted.)

[100] The application judge found that Ontario had not met its burden at the rational connection stage. After noting that “[t]he ‘hallmarks’ of rational connection are ‘care of design’ and ‘a lack of arbitrariness’”, he concluded:
I am of the view that the evidence supports the conclusion that there was a lack of care taken by the Government when the TTC Act was enacted.
The application judge discussed the speed with which the TTC Act had been enacted, noting that there was “no evidence that the Government conducted extensive consultations or meaningful discussions with the TTC unions before the legislation was introduced.” He concluded:
It is my view that the lack of care is evident in the way in which the legislation prohibits the right to strike of all TTC employees regardless of whether the employee’s job has any connection with the “pressing and substantial” objective. For example, it is difficult to see how a strike by customer service agents or painters would affect the health and safety of the public.
[101] In my view, it was an analytic error for the application judge to take this approach at this stage of the Oakes inquiry. Instead, his focus should have been on whether it was reasonable for the legislature to suppose that its chosen means – namely, banning strikes and lockouts at the TTC – would advance its objectives. Whether the government could or should have engaged in more extensive consultations with the unions, and whether its goals could have been adequately achieved by a more carefully tailored strike ban, were both questions that properly fell to be considered later, at the minimal impairment stage of the Oakes analysis rather than at the rational connection stage.

[102] I recognize that in OECTA, a majority of this court held that overly broad legislation can sometimes raise rational connection concerns. That case involved wage restraint legislation directed at “the responsible management of the province’s finances and the protection of sustainable public services.” The majority found that the legislature’s decision to include some workers in the energy and academic sectors was not rationally connected to this objective, since these workers were not paid directly by the province, and there was no reason to imagine that increasing their pay would indirectly cause the province to have to pay more money to their employers.

[103] The situation in the case at bar is meaningfully different. Even if strikes by certain TTC workers – such as customer service agents or painters, to use the application judge’s example – would not directly jeopardize public health and safety, the environment, or the economy, the legislature could still rationally conclude that its objectives would be advanced by a scheme under which all TTC bargaining disputes were resolved by binding arbitration, rather than by an approach that would treat different groups of TTC employees differently based on their job descriptions, even if they were all part of the same bargaining unit. The analytically distinct question of whether the legislature was justified in taking this broad-brush approach is better assessed at the minimal impairment stage of the Oakes analysis.

[104] Significantly, this was what the Supreme Court of Canada majority did in SFL, where one of the objections to the PSESA was that it allowed the government to unilaterally designate which workers were considered “essential”. Abella J. found that the legislation was rationally connected to the legislative objective of preserving essential public services, although she then found that it failed the minimal impairment step of the Oakes analysis.

[105] In summary, I conclude that the application judge erred in law by finding that Ontario had not established a rational connection between the means chosen and the legislature’s objectives. However, I agree with the respondents that this error was more one of classification than of substance, since the considerations that led the application judge to find a lack of rational connection were all ones he was entitled to consider at the minimal impairment stage of his analysis.
. Ontario English Catholic Teachers Association v. Ontario (Attorney General) [rational connection]

In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) 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 considers the 'rational connection' step of the s.1 Charter 'balancing' test - here after finding a s.2(b) freedom of association violation:
(i) General principles

[186] On this branch of the Oakes test, the question is whether the impugned measure is rationally connected to the pressing and substantial objective: Health Services, at para. 148; Mounted Police, at para. 143. It is sufficient for the government to show that it is reasonable to suppose that the measure may further the objective – not that it will actually do so: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48. Nevertheless, the measure must not be arbitrary, unfair or based on irrational considerations: Canada v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892, at p. 921.

[187] The evidentiary burden at this stage is “not particularly onerous”: Health Services, at para. 148, citing Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 228, per Iacobucci J. (dissenting). Direct proof of a causal relationship between the measure and the objective is not required: Thomson Newspapers Co., at para. 39.


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Last modified: 26-05-24
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