The Ford government's law capping wage increases for hundreds of thousands of public sector workers has been struck down by Ontario's top court, likely setting up a showdown in the Supreme Court of Canada.
Ontario Superior Court Justice Markus Koehnen ruled on Tuesday that Bill 124 violated collective bargaining rights protected by Section 2(d) of the Charter. Therefore, the 2019 law is "to be void and of no effect," Koehnen ruled.
The government's "intention is to appeal" the ruling to the Supreme Court, Attorney General Doug Downey's spokesperson said in an emailed statement, but it is still "reviewing the decision."
Bill 124 was passed in November 2019, early in Premier Doug Ford's Progressive Conservative government's first mandate. It set a one per cent annual wage increase limit on 780,000 public sector workers for three-year periods, covering collective bargaining agreements struck after June 5, 2019, according to Koehnen's decision.
Wage increases applied to government workers, teachers, nurses, university faculty members and more. Many of the province's biggest public sector unions have rallied against it since its introduction.
Numerous labour organizations challenged the law, arguing it violated the Charter of Rights and Freedoms.
Koehnen heard groups that made 10 separate applications challenging Bill 124 in two weeks of hearings in September.
As it was written in 1982, the Charter didn't explicitly protect collective bargaining rights. However, the Supreme Court ruled in 2015 that its Section 2(d), which protects the freedom of association, can be applied more widely to protect unions' collective bargaining rights.
"It is well-established that Charter rights are to be interpreted generously and purposively. The constitutional right to collective bargaining therefore goes beyond merely the right to associate in the sense of having a right to meet together," Koehnen wrote in his decision on Bill 124.
"Rather, (Section 2(d)) guarantees the right to a meaningful collective bargaining process that allows workers to meet with employers on more equal terms, to put forward the proposals they wish and to have those proposals considered and discussed in good faith."
Bill 124's wage-capping component amounts to "substantial interference" with these rights, said Koehnen.
Not only does it affect unions' ability to negotiate higher wages, "but (it) also interferes with collective bargaining in a number of other ways."
"For example, it prevents unions from trading off salary demands against non-monetary benefits, prevents the collective bargaining process from addressing staff shortages, interferes with the usefulness of the right to strike, interferes with the independence of interest arbitration, and interferes with the power balance between employer and employees," Koehnen said.
The government argued that Bill 124 was justified via Section 1 of the Charter, which allows governments to override constitutional rights to a "reasonable limit." But Bill 124 was not reasonable, Koehnen ruled. The government had argued that Ontario's debt made its law reasonable.
"The Supreme Court of Canada has held numerous times that budgetary considerations will not ordinarily constitute pressing and substantial objectives under S. 1," Koehnen's decision says.
"As a result, I declare the Act (Bill 124) to be contrary to be void and of no effect," Koehnen wrote to finish his reasons for judgment.
The groups challenging Bill 124 had also argued that it violated the Charter's freedom of speech and equality rights, which Koehnen did not agree with. However, its violation of collective bargaining rights protected by the Constitution alone prompted Koehnen to strike down the law.
"I was really surprised — pleasantly surprised — but I shouldn't be, because it's the right decision, and we knew that all along," Karen Littlewood, president of the Ontario Secondary School Teachers' Federation, one of the unions that fought Bill 124 in court, said on Tuesday.
Koehnen's ruling was published on Tuesday afternoon.
In a statement, Peter Tabuns, interim leader of the official Opposition NDP, urged Ford's government not to appeal Koehnen's decision, calling it "a victory for workers in Ontario."
Same goes for Green Leader Mike Schreiner, who said the government "must not waste any more taxpayer money fighting for this terrible piece of legislation," and that it's "time to consign Bill 124 to the dustbin of history."
John Fraser, interim leader of the Ontario Liberals, said at Queen's Park that "the courts told us what we already knew: it was wrong and unconstitutional for Doug Ford to say to nurses, other front-line health-care workers, and other workers across this province that they didn't have the right to bargain."
If the government does not challenge Koehnen's ruling, or it isn't overturned by the Supreme Court, Ontario could be on the hook for $8.4 billion, the Financial Accountability Office (FAO) estimated in late September.
The watchdog noted public sector workers — who make up one in 10 of all paid workers in the province — have seen lower wage increases compared to the federal public sector and private sector employees over the past 11 years.
Ontario Public Service workers' average 1.6 per cent wage increase hasn't kept up with inflation (1.8 per cent) over that time span.
With files from Jack Hauen and the Canadian Press.