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Charter - s.2(d) Association (4). 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 - breached Charter s.2(d) ['freedom of association']:D. Issue 1: By ending the strike, did bill 178 limit the rights of OPSEU members under s. 2(D) of the Charter?
[14] The applicable law is set out in the 2015 labour trilogy, which was reaffirmed by the Supreme Court in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, 491 D.L.R. (4th) 385, at paras. 17-37. The framework for evaluating alleged limits on freedom of association under s. 2(d) asks “whether activities are protected under s. 2(d) and whether the government action has, in purpose or effect, substantially interfered with those activities”: Casinos, at para. 20. In the labour context, s. 2(d) protects the right of workers to advance workplace goals through a collective bargaining process and to collectively withdraw their services (in other words, to strike) in pursuit of terms and conditions: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (“BC Health Services”), at para. 87; SFL, at paras. 3, 75, 77. The Supreme Court stated in Meredith, at para. 24, that the test for determining whether there has been substantial interference remains the test set out in BC Health Services. Under that test, the question is “whether the process of voluntary, good faith collective bargaining between employees and the employer has been, or is likely to be, significantly and adversely impacted” by the measure being challenged: BC Health Services, at para. 92. This is a “contextual and fact-specific” analysis: BC Health Services, at para. 92.
[15] This was the approach the application judge took. He noted, at para. 37: “While the timing of the Act may have accelerated the end to the negotiating process, the government assessed that it had reached the point of diminishing and, likely, no returns.” He added, at para. 38: “Although that was a judgment call by government, there is nothing in the evidence that, on the balance, contradicts the government’s assessment.” The application judge concluded, at paras. 38-39, that because the parties had reached an impasse, “the legislation’s imposition of an alternative to stalled negotiations did not amount to a substantial interference with meaningful collective bargaining” and did not limit s. 2(d) of the Charter.
[16] The application judge erred by not considering this court’s interpretation of the 2015 labour trilogy in TTC. At issue in that case was a complete ban on unionized TTC employees’ ability to strike after the expiry of a collective agreement. Justice Dawe, speaking for the majority, and following the majority reasons of Abella J. in SFL, held that “because of the importance of the right to strike to the collective bargaining process, any complete ban on unionized workers’ ability to strike after the expiry of a collective agreement will invariably ‘substantially interfere’ with their s. 2(d)-protected collective bargaining rights”: TTC, at para. 40 (emphasis in original). The ban accordingly “does not require a case-specific inquiry into precisely how eliminating the right to strike has affected the collective bargaining process in the particular circumstances”: TTC, at para. 40.
[17] In our view, the same logic applies to legislation that ends a strike that was properly called under the applicable legislation, as was true for this strike. Justice Abella’s comment in SFL, at para. 3, must be respected by this court: “[T]he right to strike is an essential part of a meaningful collective bargaining process”. Given the importance of the right to strike, “it should come as no surprise that the suppression of legal strike action will be seen as substantially interfering with meaningful collective bargaining”: SFL, at para. 46. By ending a legal strike action, Bill 178 necessarily and substantially interfered with meaningful collective bargaining. It removed a “necessary component” of the process – the ability to engage in a collective work stoppage – from OPSEU members’ hands: SFL, at para. 75. Even though this prohibition on striking was temporally limited, ending strike action for the duration of the collective bargaining process limited a protected activity under s. 2(d).
[18] Accordingly, by ending the strike, we find Bill 178’s passage limited the rights of OPSEU members under s. 2(d) of the Charter to freely associate in striking. . Ontario Public Service Employees Union v. Ontario (Attorney General) [Charter back-to-work]
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".
The court considers the Charter aspects of public sector labour relations, here in a novel 'back-to-work' context - and concludes in this case that 'interest arbitration' was an acceptable alternative:[2] Public sector labour relations are governed by federal and provincial legislation within the constitutional framework set by the Supreme Court in the 2015 labour trilogy: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (“MPAO”); Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125; and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 (“SFL”).
[3] Soon after the trilogy was published, this court addressed that framework in Gordon v. Canada (Attorney General), 2016 ONCA 625, 404 D.L.R. (4th) 590, leave to appeal refused, [2016] S.C.C.A. No. 444 (Professional Institute of the Public Service of Canada), and [2016] S.C.C.A. No. 445 (Gordon), which considered the constitutionality of public sector wage restraint legislation. More recently, this court returned to the trilogy in Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101, 170 O.R. (3d) 1 (“OECTA”), regarding provincial wage restraint legislation, and again in Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407, 172 O.R. (3d) 571 (“TTC”), regarding the constitutionality of a complete ban on unionized workers’ ability to strike after the expiry of a collective agreement.
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[14] The applicable law is set out in the 2015 labour trilogy, which was reaffirmed by the Supreme Court in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, 491 D.L.R. (4th) 385, at paras. 17-37. The framework for evaluating alleged limits on freedom of association under s. 2(d) asks “whether activities are protected under s. 2(d) and whether the government action has, in purpose or effect, substantially interfered with those activities”: Casinos, at para. 20. In the labour context, s. 2(d) protects the right of workers to advance workplace goals through a collective bargaining process and to collectively withdraw their services (in other words, to strike) in pursuit of terms and conditions: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (“BC Health Services”), at para. 87; SFL, at paras. 3, 75, 77. The Supreme Court stated in Meredith, at para. 24, that the test for determining whether there has been substantial interference remains the test set out in BC Health Services. Under that test, the question is “whether the process of voluntary, good faith collective bargaining between employees and the employer has been, or is likely to be, significantly and adversely impacted” by the measure being challenged: BC Health Services, at para. 92. This is a “contextual and fact-specific” analysis: BC Health Services, at para. 92.
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iv. Did the Application Judge Err in Finding that Interest Arbitration Under Bill 178 was an Adequate Substitute for OPSEU’s Right to Strike?
[68] OPSEU argues that the application judge erred in considering whether interest arbitration was an adequate substitute for OPSEU’s ability to exercise the right to strike in his s. 2(d) analysis, rather than in his s. 1 analysis, as required by TTC, at para. 60. To the contrary, he addressed the argument both in his s. 2(d) analysis and in proportionate effects. The application judge found, at para. 65, in the section of his reasons on proportionate effects, that the government “exercised its responsibility to ensure a fair replacement process for collective bargaining by creating a neutral arbitral process where, as with direct labour negotiations, no outcomes were off the table”, that is, “appropriate arbitration”.
[69] We reject OPSEU’s argument that the application judge’s analysis was simplistic, because, having found that the interest arbitration procedure imposed in Bill 178 “did not suffer the same flaws as the procedure before the [Superior] Court in CUPW 2016, [the application judge] erroneously assumed that this renders the legislation minimally impairing.” This does not characterize his analysis fairly. He noted, at para. 55, that the “form of arbitration imposed by the Act does not dictate an outcome or skew the process in the same rights-infringing way.” Bill 178 “did not dictate any specific terms, it imposed a neutral form of arbitration, and it resulted in a ‘historic’ achievement for OPSEU in reaching a new collective agreement”: at para. 55. Interest arbitration prescribed by Bill 178 met the test stipulated in SFL, at para. 93, of being a “meaningful alternative mechanism for resolving bargaining impasses”. The fact that Bill 178 did not replicate the lack of neutrality in the impugned legislation in CUPW 2016, which the application judge noted at para. 33, supported his conclusion that Bill 178 was a “meaningful alternative mechanism” for resolving bargaining impasses, but was not its foundation.
[70] The application judge did not simply compare a less damaging approach with a more damaging alternative, as OPSEU argues, citing British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184, 384 D.L.R. (4th) 385, at para. 386, per Donald J.A. (dissenting), rev’d substantially for the reasons of Donald J.A., 2016 SCC 49, [2016] 2 S.C.R. 407. Rather, the application judge engaged with the characteristics of the arbitration model selected and concluded that the limit on OPSEU members’ s. 2(d) right, and the deleterious effects that flowed, were mitigated by the substitution of interest arbitration for strike activity, consistent with the Supreme Court’s guidance. His findings support both his conclusion that Bill 178 was minimally impairing of the Charter right and that its effects were proportionate.
[71] We observe that OPSEU took no issue with the substantive approach to interest arbitration taken by Bill 178, or even with a single phrase in it. Indeed, it is hard to imagine, in both preamble and text, a more generous form of unrestricted interest arbitration. The application judge did not err in finding that interest arbitration under Bill 178 was an adequate substitute for OPSEU members’ strike.
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