Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

As the Centre for Addiction and Mental Health (CAMH) has noted, the “COVID-19 pandemic has sparked a rise in stigma and discrimination against people who have the virus; people from countries where the virus originated or are considered hot zones; people who have travelled recently; or even those who it is believed have come in contact with someone who has the virus.”

When people face discrimination because of this stigma, what recourse can they hope for in Ontario’s human rights law? The Ontario Human Rights Commission has taken the position that the “Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.” This means that an employer who fires an employee because the employee is diagnosed with COVID-19 may be held responsible for human rights violations. Further, under the Code, discrimination based on perception of disability is prohibited. So, if an employer believes the employee may have COVID-19, they may also be held responsible for human rights violations.

These grounds for discrimination will hold true for all areas covered by the Code. For example, a landlord that evicts a tenant because the tenant has, or is perceived to have, COVID-19 could be found liable for the discrimination.

In a case working its way through the British Columbia Human Rights Tribunal, a harm reduction worker in the Vancouver Downtown Eastside and Surrey was evicted due to her landlord’s concern that she had been exposed to COVID-19 because of her work. The landlord argued that her claim should be dismissed because COVID-19 is not a physical disability under the Code and the claim therefore had no prospect of success.

The Tribunal refused to dismiss the complaint because the stigma of COVID-19 is such that even being perceived to have it should be protected under the ground of physical disability. The Tribunal reasoned that “this aspect of the complaint is about the alleged stigma that attaches to Covid-19, quite apart from the virus’ effects on a person who has it. In my view, the issue raised by this aspect of the complaint falls squarely within the ambit of perceived physical disability.”

Once a complainant establishes that they have been the subject of discrimination due to having, or being perceived to have, COVID-19, the burden will shift to respondents to justify the conduct for legitimate health and safety reasons and to show why they could not accommodate the complainant. General concerns about the virus will not be enough to justify discrimination. In the BC case, the Tribunal found the landlord’s arguments regarding his “genuine worries” about health to be insufficient without detailed information about his specific vulnerabilities, his understanding about COVID-19 at the time, his genuine concerns, what information he sought from the tenant, and what options he considered before eviction.

It remains to be seen how much latitude human rights tribunals will grant those who discriminate based on “genuine worries” about the virus. But, if the case from BC is any indication, those who have faced discrimination based on COVID-19 stigma need not assume that concerns related to the virus will always prevail over the right to be free from discrimination.

If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.

In a recent grievance decision between the Limestone District School Board and CUPE Local 1480, Arbitrator Jesse Nyman found that changing a bargaining unit member’s work location may eliminate a position and create a vacancy, triggering the mandatory posting provisions of a collective agreement.

In 2013, the Employer decided to close two of its secondary schools in Kingston, Ontario and to construct a new secondary school. The grievance began when the Employer announced its intention to unilaterally transfer staff from one of the old schools to the new school when it opened.

At arbitration, the Union argued that, when an old school closes, the positions at that school cease to exist and when the new school opens, vacancies will be created that must be posted and filled in accordance with the posting and seniority provisions of the parties’ collective agreements. The Employer defended its intention to simply transfer staff from one school to another by arguing that there were no vacancies created, only a change in work location, and therefore no provisions of the collective agreements applied.

In his decision, the Arbitrator agreed with the Union’s position that the shutting down of the old schools and opening of the new school was a “school closure” within the meaning of the collective agreement. The Arbitrator also accepted the Union’s argument that the collective agreements prohibited the Employer from unilaterally transferring employees from one work location to another when a school closes. Rather, the posting provisions must be applied. The Arbitrator found that this interpretation was supported by the plain language of the agreements and the parties’ past practice regarding school-to-school transfers. The grievance was therefore allowed and the Board was ordered to post the new positions in accordance with the terms of the collective agreements.

This win for the Union highlights that a change of work location, depending on the language of the collective agreement, may trigger a vacancy that requires a position to be posted. This reinforces the importance of seniority rights for workers, which are almost always a key determinant in filling vacant positions.

The Union was represented by Julia Williams of RavenLaw.

On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.

RavenLaw is pleased to announce that one of its partners, Wassim Garzouzi, has been unanimously appointed as the President of the Canadian Association of Labour Lawyers (CALL) as of July 30, 2020. CALL is a voluntary organization comprised of approximately 600 lawyers who represent the labour movement across Canada. The Association endeavours to protect and advance the interests of workers in the forums where labour law is made and administered. Wassim’s presidency marks the first time that a Black, Indigenous, or Person of Colour has been named to the CALL executive since its founding in the late 1980s.

Wassim, who was previously elected to the role Regional Vice-President (Ontario), has been a member of CALL Council since 2016.

Congratulations to Wassim on his historic appointment!

Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.

A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.

In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.

The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.

The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement.  Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.

The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016.  The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.

In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution.  The passage of time should not be relied on to “wash away” the fact of the allegation.  Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.

In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.

The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code.  While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.

With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.

Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.

This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time.  The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.

[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).

[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.

a) You can unionize even though it isn’t safe to hold an in-person certification vote

The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.

The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.

In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”

b) You may be able to unionize even though you and your coworkers were laid off

In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.

The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”

The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.

Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”

However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.

Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.

c) You can unionize even though your employer is experiencing economic uncertainty

In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.

The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”

The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”

The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”

In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.

On August 19, 2020, Morgan Rowe will present a seminar on returning to work during the COVID-19 pandemic. Morgan will discuss employees’ rights while returning to work, with a specific focus on the disability rights of employees and their family members.

The workshop is presented by Reach Canada. Reach provides educational programs and independent legal referral services that address the rights and interests of persons with disabilities

Pre-registration is required for this videoconference seminar. More information, including on how to register, may be found here.

Ravenlaw gratefully acknowledges the contribution of this post by articling student Claire Michela.

Regulated in Ontario since 1993, midwives are an overwhelmingly female-dominated profession represented by their Association of Midwives (AOM). Regulation was a proud moment for midwives, as it was a public recognition of their contributions to Ontario’s health care system. Recently, the Divisional Court found that the Ministry of Health (MOH)’s decision to raise the wages of midwives slowly, compared to other health care workers, amounts to systemic pay discrimination.

In 1993, the MOH and AOM worked together to develop funding principles to guide midwives’ future pay increases. Based on a third-party assessment, the AOM and MOH decided that doctors working in Community Health Centres (CHCs) had comparable levels of skill, effort, responsibility, and working conditions to Midwives, and the two groups should be paid on par.

But, starting in 2004, midwives’ wages were frozen and negotiations became strained. As similarly situated CHC doctors’ wages continued to increase, midwives’ pay was minimally increased for a number of years. As the pay gap broadened, the AOM filed a human rights complaint for gender discrimination in 2013.

In 2018, the Human Rights Tribunal of Ontario concluded that the MOH’s refusal to negotiate fair pay increases was discriminatory. This finding of discrimination meant that gender was a factor in midwives’ lower pay compared to similarly situated health care workers.

Despite the Tribunal’s decision, the MOH still could not agree on an appropriate amount to compensate midwives for years of discriminatory under-payment. The case returned to the Tribunal, which decided that the MOH must provide a 20% pay increase retroactive to 2011, human rights damages for those who signed on to the complaint, and interest to compensate midwives for lost time.

The MOH was unsatisfied and brought both Tribunal decisions to the Divisional Court for judicial review. At the Divisional Court, the MOH tried to argue that there was no pay discrimination because the midwives’ gender was not a factor in the MOH’s decision to pay midwives less than CHC doctors. However, the Court’s decision reminds the MOH that in human rights cases, intent to discriminate is never required.

The Divisional Court found the MOH’s arguments about why the Tribunal decisions were unreasonable to be “disingenuous” because they “fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”

Discrimination is systemic when the policies or practices of organizations result in an adverse impact for a protected group. In this case, the MOH’s pay policies were discriminatory toward midwives because their pay was raised remarkably slowly (an adverse impact) compared to similarly situated health care workers.

Systemic discrimination has been a topic of public debate recently, as the Black Lives Matter movement has gained traction around the world. The case of the pay of midwives in Ontario demonstrates how systemic discrimination is a subtle form of discrimination that can creep in over time and that it may be unintentional. However, as noted by the court, in human rights law, intention is not required for systemic discrimination to exist.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.

Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.

How am I protected as a parent and an employee?

Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.

The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.

In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.

Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.

Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.

A Recent Example

Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.

Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.

This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.

Addressing Family Status Concerns

If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.

If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

A recent decision of the Manitoba Court of Queens Bench has found that legislation which purported to cap wage increases for unionized public sector employees infringed the Charter right to freedom of association.

Manitoba’s Progressive Conservative Party was elected in April 2016 and, shortly thereafter, Cabinet recommended adopting wage-freezing legislation modeled on legislation that had previously been used to limit increases to public sector wages in Nova Scotia. The legislation was passed within a year. The Public Service Sustainability Act (PSSA) created what it called a “sustainability period”. This meant that for the first two years following the expiration of a collective agreement no wage increases could be granted or awarded by an arbitrator. In the third year, increases were to be capped at 0.75% and 1.0% in the fourth.

The legislation received royal assent but was not proclaimed into force. Some speculated that the reason for its non-proclamation was to avoid the possibility that it would be held to be unconstitutional. However, the unions that challenged the legislation provided extensive evidence that, despite the non-proclamation of the legislation, the threat of the legislation’s ability to retroactively roll back negotiated wage increases hung over all collective bargaining tables, and was repeatedly adverted to by government and employer negotiators. Nearly all of the unions who were parties to the Charter challenge had concluded collective agreements with wage increases in line with the PSSA but indicated that their acceptance was conditional on the constitutionality of the PSSA and that they were signed “under duress”.

The constitutional challenge relied on the developing jurisprudence around section 2(d) of the Charter which guarantees freedom of association. Freedom of association has developed to include a right to collective bargaining free from substantial government interference and a right to strike. The most recent decisions from the Supreme Court are the 2015 trilogy of Mounted Police Association of Ontario, Meredith, and Saskatchewan Federation of Labour, as well as the Court’s subsequent decision in British Columbia Teachers’ Federation.  Those decisions advanced the law of freedom of association significantly in positive directions for unions. However, the Meredith decision found that wage restraint legislation imposed to address economic concerns arising out of the 2008 financial crisis was permissible in the context of the labour relations regime in place at the RCMP. Subsequently, appellate courts across the country dismissed constitutional challenges to that same federal wage restraint legislation.

A Significant Win for Freedom of Association

The Manitoba Federation of Labour case is important. It provides a clear and systematic analytical framework for dealing with legislation which freezes or limits increases on public sector wages achieved through collective bargaining.

The Court’s findings can be broken up into four parts:

1. The fact that the legislation was not proclaimed into force did not prevent the court from reviewing its constitutionality.
2. There is no duty on legislators to consult unions prior to legislating with respect to matters falling within the purview of collective bargaining. However, consultation or the lack thereof may be relevant in determining whether the legislation is justified.
3. The legislation substantially interfered with collective bargaining: monetary concerns are important concerns for union members and removing them from consideration in collective bargaining significantly compromises a unions ability to bargain on other issues.
4. The legislation could not be justified under section 1 of the Charter: general reduction in budget deficits, absent some emergency, was not a pressing and substantial objective. Additionally, the lack of consultation indicated that the government had not meaningfully explored other options which is required to meet the minimal impairment requirement of the proportionality branch of the test for justification under section 1 of the

In comparing the Manitoba legislation to the Federal legislation in Meredith, the Court noted that a significant difference between the two pieces of legislation was that the federal legislation sought to impose salary increases comparable to those that had been negotiated for comparable bargaining units in the public sector. Also, in this case, the legislation was imposed so as to have an effect on future collective bargaining rather than to provide certainty to bargaining that had been ongoing. The Court found that the enactment of the PSSA had wide-reaching consequences on labour relations and substantially interfered with a meaningful process of collective bargaining and thus infringed section 2(d) of the Charter.

Notably, the Court found that the government had failed to justify the Charter infringement at the first stage of the Oakes test. It emphasized that Courts should look with a large degree of skepticism on “dollars versus rights” controversies. The unions pointed to the fact that the government had introduced tax cuts at the same time as it pled poverty. The court found, upon a detailed review of various budgetary reports, that there was no budgetary crisis that could constitute a pressing and substantial objective. Courts rarely rely on this branch of the Oakes test to find that constitutional infringements cannot be justified. As such, this can be read as a striking indictment of legislating wage restraint for unionized employees for ideological or convenience reasons.

For the sake of completeness, the Court went on to consider the balance of the Oakes test including whether the PSSA minimally impaired the union members’ freedom of association while accomplishing its stated objective of limiting government expenditures. In determining whether the government employed the least-infringing option, the Court looked at the process that led up to the adoption of the legislation.  The government had indicated to the unions at all times prior to the passage of the legislation that this was the only option it would consider. The Court suggested that the government could have simply reduced budgets at government-funded employers and allowed bargaining to transpire in that context. The unions had gone so far as to propose less-impairing alternatives prior to the enactment of the legislation but the government had ignored their proposals.

The Court declared that the relevant sections of the PSSA violated the Charter, could not be justified and were thus of no force and effect.

Takeaways for Unions

There are significant practical lessons to be had from the unions’ success in this case in how to deal with legislated austerity measures for public sector wages.

First, it appears that the tactic of ratifying collective agreements conditionally with the proviso that it was done “under duress” can support the conclusion that collective bargaining was substantially interfered with and may allow the unions to later challenge the collective agreements, which were concluded under the threat of the legislation.

Second, the unions presented a united front with all affected public-sector unions working together to challenge the legislation fronted by the Manitoba Federation of Labour. This strategy appears to have assisted in presenting robust factual evidence and providing the Court with a complete picture of all facets of the government’s application of its policies under the legislation in negotiations with various bargaining units.

Third, while the decision confirms that pre-legislative consultation is not required for wage restraint legislation, it suggests that such consultation may assist the government in justifying any resulting infringement. It may be advisable for unions facing down impending wage-restraint legislation to make concrete alternative proposals which can be relied on later to show that the legislation was not the least rights-impairing option to address the government’s concerns.

Fourth, the unions brought forward significant amounts of expert evidence from labour relations scholars on a variety of issues including the importance of the leverage gained from being able to negotiate on monetary issues, the effect of these restrictions on the relationships between unions and their members, the impact of such legislation on the ongoing relationships between unions and management, the effect of the legislation on strike leverage, and consequences for government finances. The Court relied extensively on the expert reports provided by the union, demonstrating the importance of developing a significant evidentiary basis on both the section 2(d) and section 1 Charter issues.

This decision will hopefully chill efforts by governments to impose wage restraint through legislation. If not, it provides an effective roadmap for similar constitutional challenges to newly introduced legislation that will curtail bargaining rights.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]