Bill 124 Charter challenge is heard in Ontario Superior Court

Here’s what happened on Friday, September 23, 2022 in court.

On Friday, the unions made brief submissions in reply to some of the government’s points.

Unifor made submissions on the gender equality case. Unifor argued that the government has an obligation to consider whether its programming and budgetary decision-making has a disproportionate effect on women. Unifor argued that gender discrimination can be found either where a law on its face discriminates between women and men, or, as in the case of Bill 124, in the effect of the law on the ground.

The Ontario Federation of Labour (OFL) coalition made arguments about freedom of association. They argued that government evidence focused on the very few examples where people had made improvements on non-monetary issues, rather than addressing the overwhelming evidence provided by the unions that there had been substantial interference with the right to bargain. The OFL coalition argued that there is overwhelming evidence on the record that the actual impact of Bill 124 was to effect low-wage and low-income workers.

The Ontario Nurses Association (ONA) focused on the impact of Bill 124 on the shortage of workers in the healthcare system. ONA argued that even the government’s experts agreed that there should be no restriction of wages for workers where there is a shortage.

At the end, the judge thanked all parties for their help in understanding the issues. He stressed he would read the record thoroughly, consider all the submissions made by the parties, and issue a decision in the months to come.

Workers don’t need to wait for the courts to decide. Premier Ford can repeal Bill 124 today.

Add your voice to demand that Ford Repeal Bill 124 Now, then share the message on social media and with your members.

Share this story to see all of the Bill 124 case updates in one place.

Thank you for your engagement throughout these past two weeks, and for the work that is yet to come.

Here’s what happened on Thursday, September 22 in court.

Yesterday the government made its claims that Bill 124 does not violate equality rights of female workers in Ontario. Government lawyers argued that Bill 124 does not displace Ontario’s Human Rights Code and Pay Equity Act. Government lawyers made the argument that distinctions in Bill 124 were made on the basis of what sort of job members held, not on the basis of their gender.

Your right to pay equity extends to work of equal value. The government made male-dominated jobs exempt and forced women’s dominated sectors like education and healthcare to take the wage cap.

Add your voice to demand that Ford Repeal Bill 124 Now, then share the message on social media and with your members.

The government also argued that even if Bill 124 does violate the Charter, this violation can still be justified given the circumstances. Workers cannot accept a violation of our rights.

They argued that the court should be highly deferential to governmental economic choices and priorities. They argued that the objectives of Bill 124 were pressing and substantial, and the means that the province used to pursue its agenda were rationally connected to its underlying goal of protecting public sector sustainability.

Lawyers next argued that Ontario pursued its objectives in a way that minimally impaired the Charter rights of the applicant unions. In sum, government lawyers made the argument that Bill 124 was justified given the circumstances, and overall proportional. They argued that if the court does find a violation of the Charter, it should also find that this violation was justified.  

Today will be the last day in court.

Lawyers for the union coalition, including Unifor’s lawyers, are back in court to make brief reply submissions to the points raised by government during the course of this week.

Here’s what happened on Wednesday, September 21 in court.

Government lawyers continued to make the case against workers, that Bill 124 did not violate the Charter.

They went into more detail about their argument that Bill 124 does not violate the Charter guarantee of freedom of association. Government lawyers argued that the province had no obligation to consult with unions before bringing in Bill 124.

Government lawyers continued to claim that Bill 124 merely instituted a 1% cap to wages and compensation. They argued this was fundamentally different than prescribing a particular wage, as it left the parties more flexibility than a prescribed wage. They argued there is significant room to bargain monetary and non-monetary issues within a 1% wage cap.

Every worker affected by Bill 124 knows that this is not true.

In today’s economy, with years of supply chain issues, price gouging, and inflation, 1% is nowhere near enough room for a full wages and benefits package.

For a Unifor member working in an Ontario hospital, 1% increase on $23 an hour is an extra 23 cents an hour, that’s less than $500 a year. When the prices of food, gasoline and other consumer goods have increased more than 7% in the past year, that $500 adds up to a wage cut, or your family’s grocery bill and a tank of gas.  

Add your voice to demand that Ford Repeal Bill 124 Now, then share the message on social media and with your members.

Here’s what happened on Tuesday, September 20 in court.

On Tuesday, the government argued that Bill 124 does not violate the constitutionally protected right of freedom of association, because it (a) is time limited, (b) doesn’t open up already bargained collective agreements, (c) applies broadly without singling out a particular union or sector, and (d) doesn’t replace existing bargaining structures and statutory regimes.

The government lawyers argued that freedom of association does not give union members a right to an outcome of wages above 1%, but rather a right to a process of meaningful bargaining, and that Bill 124 does not predetermine wages or take wages off the table in bargaining.  

More than 40 labour unions representing more than 1 million workers presented evidence in the past week that disproves these opinions.

Workers have a right to bargain collectively, that means without the government stepping in with a predetermined outcome.

Unions set bargaining priorities based on factors like inflation, staffing levels, health and safety and much more- and Bill 124 touches all aspects of bargaining by limiting our ability to negotiate monetary increases like wages and benefits packages.

Government carve-outs for male-dominated sectors like police and fire prove that the law was not applied uniformly.

Premier Ford can repeal Bill 124 at any time.

Add your voice to demand that Ford Repeal Bill 124 Now, then share the message on social media and with your members.

Government lawyers pointed out that Bill 124 doesn’t prohibit those on a wage grid from moving up on the grid during Bill 124.

Today government lawyers will conclude their argument about freedom of association, and will then turn to address the gender equality arguments made by Unifor, ONA and OPSEU.

Here’s what happened on Monday, September 19 in court.

On Monday, the Carleton University Academic Staff Association (CUASA) argued that Bill 124 was entirely arbitrary in the university sector, where two thirds of funding comes from non-government sources. However, Bill 124 restricted the university from allocating even its private funding to fair wage increases.

Lawyers for the union coalition asked the court to declare Bill 124 unconstitutional, but stay involved in the case to issue another decision about remedy if the parties cannot resolve the remedy question between them.

A declaration would allow Unifor’s bargaining units who were affected by Bill 124 and had bargained wage reopener language into their contracts to re-bargain wages, or have interest arbitrators award new wage increases.

Government lawyers took the rest of the day on Monday, trying to defend the constitutionality of Bill 124. They argued that the overarching goal of Bill 124 was to protect the sustainability of Ontario’s finances and Ontario’s public services, and that this was a balancing act that required difficult choices.

The government argued that budget decisions are very complex, and that the court must be highly deferential to the government’s economic decision-making. Today, government will turn to its freedom of association argument.

Here’s what happened on Friday, September 16 in court.

On Friday, the Ontario Public Service Employees Union (OPSEU) made submissions. Like Unifor and the Ontario Nurses Union, OPSEU made both freedom of association and equality arguments before the court. OPSEU adopted Unifor’s submissions on equality from the day before. OPSEU argued that equality and freedom of association protections go hand in hand for female workers affected by Bill 124, as Bill 124 restricts the rights of female workers to address gender discrimination in their workplaces.

The Ontario Society of Professional Engineers (the Society) argued that the fact that some members have the right to strike does not mean Bill 124 is constitutional. Without the right to meaningfully bargain meaningful wage improvements, a strike is meaningless and hugely costly for the membership.

The Power Workers Union (PWU) then reviewed the freedom of association arguments from the week. Bill 124 prohibits unions from bargaining meaningful wage increases. Second, it harms the relationship between unions and members because unions are powerless to pursue members’ priorities. Third, Bill 124 interferes with the normal dynamics of bargaining, as unions are unable to trade wages for concessions on other important issues. Fourth, Bill 124 erodes workplace democracy: for unions, collective bargaining is a bottom-up process reflecting member priorities, not artificial government constraints. Finally, Bill 124 was introduced without a good-faith consultation process. PWU compared bargaining under Bill 124 to rearranging deck chairs on the Titanic – an effectively meaningless exercise.

Finally, the Carleton University Academic Staff Association began their argument. They argued that Bill 124 violates the protection on freedom of association as well as the protection on freedom of speech. They argued that Bill 124 violates the decades-long principle of non-interference in university affairs by telling universities how to allocate their budgets. They will continue their argument today.

Here’s what happened on Thursday, September 15 in court.

On Thursday, Unifor spent most of the day making its submission to the court. 

Unifor brought the court to the critical evidence given by three Unifor members, Kelly Godick in long-term care, Kathleen Atkins in social and developmental services, and Sarah Braganza in post-secondary education, as well as the evidence of Unifor's Katha Fortier and Kaylie Tiessen. 

I’d like to thank Jenna Meguid, Dijana Simonovic, and Anthony Dale from Unifor’s Legal Department, as well as Fay Faraday for their work this week defending the rights of Unifor members in the court.

Unifor pointed out that health and long-term care are industries dominated by women workers. The court heard about the highly skilled and physically demanding work done by personal support workers and other front line workers in long-term care, where wages have always been inadequate. Unifor argued that chronic staffing shortages and precarious and part-time work in long-term care were made worse by the pandemic, and pointed out the enormous commitment of members working during that time, and the huge toll this work took on Unifor's members. 

The court heard that the community and social services sector is another women-dominated sector, where Unifor's members are expected to compensate for chronic system underfunding by working for less than they deserve despite challenging and dangerous working conditions. When the pandemic made demand for social services skyrocket and made those services more dangerous to provide, Bill 124 had already made it impossible to bargain meaningfully for Unifor's members.

Unifor explained that Bill 124 prevented Unifor from bargaining wage increases for its education sector workers, whose jobs were also made more difficult and dangerous by the pandemic. The court heard that the education sector is dominated by primarily part-time and casual positions, and heard about members performing critical jobs who were forced to work in part-time positions for decades. 

Unifor focused legal argument on the claim that Bill 124 discriminates against Unifor's women members. Unifor argued that the context in which Bill 124 was passed was one where women's work was already precarious, underfunded, and undervalued, and Bill 124 made it impossible to bargain to address the working conditions of women. This is an extremely important argument for Unifor because the majority of Unifor's members affected by Bill 124 are women. 

Unifor asked the court to find that Bill 124 violates the freedom of association protection in the Charter, as well as the equality rights of its female members. 

The remaining unions will complete submissions by Monday and the government will close their case by Friday of next week. The judge will then begin deliberations and release his decision at a future date.

This morning, Unifor will present our submission to the Court beginning at 11:30 am. The union is being represented before the Ontario Superior Court of Justice by Fay Faraday and Unifor’s own Dijana Simonovic and Jenna Meguid.

We thank these women for their work, as well as Kaylie Tiessen and Katha Fortier for making affidavits to the court.

You can register and watch the Zoom proceedings live. Do not take any screenshots or photos of the proceedings. 

Register here:  https://ca01web.zoom.us/webinar/register/WN_aGrc8nopTOKUJJPgWze4Ew

Here’s what happened on Tuesday September 13, 2022 in court:

In the morning, the Ontario Nurses’ Association (ONA) focused on the equality argument, pointing out that 79% of employees covered by Bill 124 are women. ONA argued that the government had an obligation to consider the differential impact of Bill 124 on women, and that it failed to do so.

Lawyers for the Elementary Teachers Federation of Ontario (ETFO) took the podium next, returning to the freedom of association issue. ETFO argued that Bill 124 was unnecessary in the education sector, because the government already has a legally protected role in collective bargaining in education. ETFO argued that government has an obligation to make economic decisions in a way that is consistent with the constitutional rights of those affected.

In the afternoon, the Ontario English Catholic Teachers Association (OECTA) took the podium on the question of freedom of association. They argued that the purpose of the freedom of association protection in the Charter is to empower workers, to address the imbalance between workers and employers, and to allow workers to come together and influence their work conditions through meaningful collective bargaining. OECTA argued the government’s actions around Bill 124 demonstrate that it fundamentally does not respect collective bargaining in Ontario.

Here’s what happened on Tuesday, September, 13, 2022 in court:

On Tuesday, OFL coalition lawyers finished their argument that Bill 124 impedes the freedom of workers to organize and pursue collective goals, and argued that the infringement on the rights of workers is not justified.

Next the Ontario Nurses’ Association (ONA) took the podium. Like Unifor, ONA argues that Bill 124 infringes the protected right of freedom of association for all members, and the equality rights of its female members. ONA focused on their freedom of association claim, and the impact of Bill 124 in health-care. 

ONA told the court that staffing shortages in hospitals and long-term care had already reached crisis levels in Ontario before Bill 124 interfered with the right to bargain freely. Once introduced, Bill 124 became a straightjacket on unions, prohibiting them from bargaining wages and other provisions that could have helped address this crisis. Then Covid hit and plunged the system into a crisis within a crisis.

ONA also addressed their equality claim. They argued that the overwhelming majority of nurses and health-care workers in Ontario are women, and highlighted the incredible risks and sacrifices that nurses took to care for Ontarians during the global health pandemic, even while their wages were being artificially restricted by Bill 124 and raging inflation. On Wednesday ONA will finish their equality argument, and the education sector unions (the OSSTF, ETFO, and OECTA) will tell the court about the impact of Bill 124 on the education sector.

Unifor is looking forward to making its submissions on Thursday or Friday of this week.

Here’s what happened on Monday September 12, 2022 in court:

Unifor has brought both a freedom of association (Charter section 2(d)) and an equality claim (Charter section 15) against the Ford government. The union is being represented before the Ontario Superior Court of Justice by Fay Faraday and Unifor’s own Dijana Simonovic and Jenna Meguid.

On Day One, Monday September 12, the focus was on the Bill 124 freedom of association claim.

There are a large number of unions who brought freedom of association claims against the government. On Monday, the Ontario Federation of Labour (OFL) argued that Bill 124 has violated the constitutional rights of workers and undermined the provision of public services, contrary to the government’s claim that Bill 124 was enacted to safeguard the sustainability of public services in Ontario.

The OFL drove home that Bill 124 had a severe impact on bargaining under normal circumstances. In the height of the global health pandemic and the ongoing recruitment and retention crisis in healthcare, the impact of Bill 124 has been devastating not only for workers in Ontario, but for the integrity of health and other public services in the province.

The OFL will close their submissions tomorrow morning and then ONA will continue.

Unifor will continue to provide updates until the hearings conclude on September 23, 2022.