David Wright, Mae J. Nam, Robert Healey and Rebecca Jones successfully represented the Ontario Public Service Employees Union / Syndicat des employés de la function publique de l’Ontario in the Charter challenge to the Ford government’s Bill 124, (also known as the Protecting a Sustainable Public Sector for Future Generations Act, 2019). Bill 124 limited wage increases for approximately 780,000 workers in the broader public sector to just 1% per year for a three-year moderation period.
On November 29, 2022, Justice Koehnen of the Ontario Superior Court of Justice held that Bill 124 violated workers’ right to freedom of association which is protected under section 2(d) of the Canadian Charter of Rights and Freedoms.
The Court found that Bill 124 substantially interfered with a meaningful collective bargaining process by limiting the scope of bargaining over wage increases, preventing unions from trading off salary demands against non-monetary benefits, preventing the collective bargaining process from addressing staff shortages, reducing the usefulness of the right to strike, interfering with the independence of interest arbitration, and tilting with the power balance between employers and Unions.
The Court held that these violations of section 2(d) could not be saved under section 1 of the Charter as a reasonable limit that is demonstrably justified in a free and democratic society. The Court found that the province was not facing a sufficiently serious financial situation, to justify an infringement of Charter rights. While the government asserted that the Act was motivated by a concern for the prudent management of Ontario’s public finances, the Court noted that the government imposing wage restraint legislation on workers, at the same time as it was providing tax cuts or license plate sticker refunds that reduced revenues by more than 10 times the amount of the savings obtained from the wage restraint measures, invalidated the its attempt to justify Bill 124 on fiscal prudence grounds.
The Court declared Bill 124 to be unconstitutional and declared the Act in its entirety to be void and of no effect. The Court retained jurisdiction to address the issue of remedy at a later hearing.
Read the full decision here.