Bill 124 Declared Unconstitutional

Significant Win For The Labour Movement

29 November 2022
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Today, the Ontario Superior Court of Justice held that Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019, substantially interfered with workers s. 2(d) Charter right to a meaningful collective bargaining process. Bill 124 imposed 1% caps on compensation increases for a three year moderation period on over 780,000 unionized workers in Ontario’s broader public sector. At the time the Ford government introduced Bill 124, inflation was at 2.4%. Inflation has increased substantially in the period since, resulting in real wage losses for workers impacted by Bill 124.

In a decision authored by Justice Koehnen, Bill 124 was found to substantially interfere with workers’ right to a meaningful collective bargaining process by effectively removing compensation from the table, preventing unions from trading off compensation demands against non-monetary benefits, preventing the collective bargaining process from addressing staff shortages, interfering with the usefulness of the right to strike, interfering with the independence of interest arbitration, and interfering with the power balance between employer and employees at the bargaining table. 

The Court further found that the Ford government failed to justify the infringement of workers’ Charter rights. Noting that the Ford government imposed the compensation restraint legislation on workers at a time when it was providing tax cuts and licence plate sticker refunds, the Court treated with skepticism the Ford government’s assertions of “fiscal prudence” as a justification for the Charter violations. As noted by the Court:

Ontario has not … explained why it was necessary to infringe on constitutional rights to impose wage constraint at the same time as it was providing tax cuts or licence plate sticker refunds that were more than 10 times larger than the savings obtained from wage restraint measures

The business of government ought ordinarily to be pursued within the confines of the Charter. Breaching a Charter right should require something more than a simple preference to proceed in a particular way for political convenience. It should require some level of explanation for why it is necessary to breach the Charter right. If governments act in a manner that is inconsistent with their explanation for why a Charter breach is needed, they should at least be required to explain the inconsistency. If no explanation is required, governments are free at any time to breach Charter rights on economic grounds. Requiring these explanations does not have judges acting as finance ministers. It has finance ministers acting in compliance with constitutional requirements. Judicial deference is owed to cogent explanations that justify Charter infringements. Deference is not owed to simple assertions.”

The Court declared Bill 124 in its entirety of no force or effect.

A link to the decision is here.

Cavalluzzo lawyers successfully represented two major groups of applicants in the Bill 124 challenge.  Paul Cavalluzzo, Adrienne Telford, Balraj Dosanjh, and Tyler Boggs were in court on behalf of the Ontario English Catholic Teachers’ Association et al. Kate Hughes, Danielle Bisnar, Jan Borowy, and Kylie Sier represented the Ontario Nurses’ Association et al.

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