The Ontario Government passed Bill 115, entitled the “Putting Students First Act” in September 2012.  The legislation allowed the Provincial government to set rules that local school boards would have to follow in negotiating collective bargaining agreements with teachers’ unions.

Bill 115 also allowed the Provincial Government to impose collective agreements on the teachers’ unions if new collective agreements were not concluded by December 31, 2012.  Among other provisions, Bill 115 including provisions that any collective agreements would include a reduction in the number of annual sick days that teachers could take, a two year wage freeze and an elimination of banked sick days for teachers whose sick days had not vested.  The legislation also barred teachers from taking any strike action after December 31, 2012 or after the date on which the new collective agreement was imposed (retroactively to September 1, 2012).

The teachers’ unions are likely to challenge Bill 115 in the court system and this is the type of case that may make its way up to the Supreme Court of Canada.  The Supreme Court has issued a number of decisions in the area of collective bargaining rights but the law still remains unclear.  In 2007 in the  B.C. Health Services,  the Supreme Court overturned almost twenty years of constitutional law by holding that “freedom of association” under the Canadian Charter includes the right to collective bargaining activity.  The Court was not prepared to go as far as stating that the Charter protected a right to strike.

In 2011, the Court retracted its position somewhat and restated the law in the case of Ontario (A.G.)  v. Fraser.  The judges of the Court were very divided over this issue and it is difficult to discern whether the Court will follow this decision.  In the Fraser case, two members of the Court attacked the BC Health Services decision and issued reasons arguing that it should be overturned.

In a nutshell, it appears that, based on the current composition of the Court, there is majority support for the idea that “freedom of association” in Canada means at least some collective bargaining rights.  While some recent court cases have suggested that this includes the duty on the part of employers to act in good faith and may even include a right to strike, these matters have not been clearly decided by the Courts.  The court challenges to Bill 1115 may eventually cause the Supreme Court to try to clarify some of these very contentious issues.  However, the result is hard to predict and may well depend on the composition of the Court at the time the cases are argued and decided.

Here is link to my appearance this morning on CTV News Network to discuss these issues in the context of the the current labour situation in Ontario involving the Ontario Government and the Province’s teachers:

CTV Interview – Ken Krupat