Northern Exposure

Ontario court finds government’s ‘intransigent’ bargaining strategy unconstitutional

by Chris Pigott

In 2015, we reported on the Supreme Court of Canada’s “New Labour Trilogy”—three landmark constitutional law decisions from January 2015 that called into question basic aspects of Canadian labor law. Those decisions sparked a massive debate in the labor law community as to whether Canadian workers had a brand new set of greatly expanded workplace rights.

Just over one year later, some lower courts appear to be taking the view that the New Labour Trilogy did not reshape Canadian workers’ rights to organize, bargain collectively, and take strike action.

However, a recent decision from the Ontario Superior Court of Justice regarding collective bargaining in the education sector appears to take an opposite view. In that decision, the Ontario court relied on the New Labour Trilogy to find that the provincial government’s conduct at the bargaining table violated the protection for freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms.

Background facts

In OPSEU v. Ontario, 2016 ONSC 2197 (April 2016), the Ontario Superior Court of Justice considered the Ontario government’s conduct in the 2012-13 round of collective bargaining with Ontario teachers and other education workers.

Specifically, in 2012, a large number of collective agreements for workers in Ontario’s education sector were due to expire. Following months of collective bargaining between the numerous school boards, unions, and the provincial government, various important issues remained unresolved.

As the expiration date for many of the collective agreements approached, the government became concerned. Its specific concern was that a statutory freeze would come into force and bind the parties to the collective agreement terms then in force for the foreseeable future. Given that the government was seeking to achieve cost savings moving forward, this was highly problematic.

To address this concern, the government introduced and enacted Bill 115, the Putting Students First Act. This legislation required that any collective agreements entered into by August 31, 2012, include terms “substantially similar” to those in the collective agreement that had already been reached with the Ontario English Catholic Teachers’ Association. Further, if such agreements were not reached by December 31, 2012, they could be imposed by the government.

Several unions then banded together and launched a legal challenge to the government’s actions based on the Charter protection for freedom of association.

In court, the government argued that it had been willing to engage in good-faith negotiations throughout the bargaining process and even following the passage of Bill 115. Furthermore, the government argued that it had been willing to accept changes to the financial parameters that it had put in place through the legislation and ultimately negotiated more favorable deals with some of the unions. In the government’s view, this was all that the Supreme Court’s case law required. In any event, the government argued, the Charter did not prevent “hard bargaining” or insistence on a specific financial proposal.

The judge disagreed. He found that the government’s conduct in bargaining had, in fact, violated the affected workers’ Charter rights.


First, the court found that the government had designed the bargaining process entirely on its own and then set financial parameters that would force the negotiations to a predetermined outcome. For the court, the “narrowing” of the bargaining process in this way gave rise to a substantial interference with workers’ freedom of association.

The court placed particular emphasis on the fact that the government had set systemwide financial parameters but then refused to meet with the unions as a group. Moreover, the government also refused to provide information to individual unions regarding the specific impacts of financial proposals on each union’s members. In the judge’s view, this was a “structural problem” that reflected an “inflexible and intransigent” approach on the part of the government.

Second, the application judge concluded that the government’s eventual willingness to make favorable adjustments to the initial financial parameters—and the fact that some of the unions actually negotiated deals with the government—did not undermine the unions’ constitutional claims. Indeed, in the judge’s view, the unilateral imposition of parameters and the threat and passage of Bill 115 so undermined the bargaining process that any outcomes that flowed from it were tainted. In his words, the outcomes of the process actually “confirmed” that a Charter violation had occurred.

Based on these and related reasons, the application judge concluded that the government’s conduct in bargaining violated the protection for freedom of association in section 2(d) of the Charter. Furthermore, it could not be saved as a “reasonable limit” on a constitutional right pursuant to section 1 of the Charter.

Damages or other remedy?

Notably, the application judge suggested that he was reluctant to issue a significant remedy against the government despite its violation of the Charter. His brief comments on this point suggest that a court’s primary focus in such cases should be on ensuring a fair process, not providing a favorable outcome for either party. In this regard, the judge expressed a concern with ensuring that the labor relations “balance” is preserved and not tilted in favor of either the employer or the union.

The parties jointly asked the court to defer its consideration of an appropriate remedy pending further negotiations. It remains to be seen what remedy, if any, the court will ultimately find to be appropriate.


Considered together, the elements of the Ontario court’s decision described above suggest that the New Labour Trilogy’s impact on Canadian labor law is developing unevenly. On one hand, the Ontario court appears to be adopting a more expansive vision of the protection for freedom of association than some other Canadian courts. On the other hand, the Ontario court’s apparent reluctance to issue a significant remedy against the government calls into question the practical relevance of these expanded rights.

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