Workers’ Rights, Freedom of Association, and Holding the Government to Account: CCLA Intervenes in Ontario Wage Cap Appeal

CCLA is intervening before the Ontario Court of Appeal in a case about freedom of association and the right to collective bargaining. The hearing in Ontario English Catholic Teachers Association v. Ontario will take place on June 20, 2023.  

CCLA’s arguments are focused on pushing back against the government’s position that courts must defer to the government on matters related to fiscal policy. While the CCLA agrees that courts do not fix government policy or evaluate priorities, they do have a role in maintaining the boundaries entrenched in the Constitution. Governments that infringe Charte rights, including freedom of association, must justify their choices – with evidence. In addition, governments cannot avoid the burden of rigorously justifying restrictions on rights by conflating their objectives with the means chosen to achieve them. In this case, the government argued that its objective was fiscal responsibility and that wage restrictions were a further “sub-objective”. On this analysis, it would be hard to come up with alternatives that would achieve the objective of restricting wages other than… restricting wages. CCLA’s arguments ask the Court to take a more rigorous approach when evaluating government justifications. In addition, we argue that while serious and systemic fiscal crises may justify a more deferential approach to government, that is not the context of the legislation challenged in this case.  

Background:  

In 2019 Ontario’s provincial government enacted the Protecting a Sustainable Public Sector for Future Generations Act, 2019, which imposed public sector wage caps. As a result of the legislation, collective agreements involving a wide array of employers, employees and unions, could not provide for an increase in salary above a certain rate over a given period of time, with few exceptions. The law applies to Crown agencies, school boards, universities, colleges, public hospitals, children’s aid societies and a variety of other organizations and offices. In effect, the law seriously impacted the ability of unions and employees to bargain with respect to salary increases. Many unions pursued a challenge to the legislation, arguing that it infringed freedom of association protected by section 2(d) of the Charte, and could not be justified under section 1. The Superior Court agreed that the infringement was not justified, and the government appealed to the Ontario Court of Appeal. As noted above, the hearing will take place on June 20, 2023.  

CCLA is most grateful to Tim Gleason and Adrienne Lei of Dewart Gleason LLP for their excellent pro bono representation in this case.