In Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407 it was noted that the TTC has over 12,000 employees who are members of different unions, which include the respondents Amalgamated Transit Union Local 113 (11,320 workers) and CUPE Local 2 (about 700 workers). They had been negotiating collective agreements with the TTC for over 100 years and over 50 years, respectively.
The Toronto Transit Commission Labour Disputes Resolution Act (TTC Act) was passed in 2011, eliminating workers’ rights to engage in strike activities and also barring the TTC from locking out its employees. Rather, it provided for engagement in mandatory binding interest arbitration.
In 2015, the Supreme Court of Canada found for the first time, in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (SFL), that “the right to strike is an integral aspect of the right of freedom of association enshrined in s. 2(d) of the Canadian Charter of Rights and Freedoms.”
The respondents had applied for a declaration that the TTC Act violated the Charter. A hearing proceeded after seven years as both sides assembled “voluminous evidential records.” The TTC Act was found unconstitutional and struck down in May 2023, violating s. 2(d) of the Charter and the breach was not justified.
The appellant, the Crown in Right of Ontario appealed from the decision. While the appeal was dismissed, Justice Jonathan Dawe found that the TTC Act violated the Charter under a different analysis than the applications judge.
Before the TTC Act, unionized workers were governed by the Labour Relations Act, allowing them to legally engage in strike activity. It was the unions’ evidence that the relationship between TTC and unions has worsened since the TTC Act passed and the TTC’s management “has become less respectful and reasonable” and that “collective bargaining has been singularly, serially and completely unsuccessful.” The application judge accepted this evidence, but the appellate court found this did not need to be analyzed.
Justice Dawe said, “As I read Abella J.’s majority reasons in SFL, she held that because of the importance of the right to strike to the collective bargaining process, any complete ban on unionized workers’ ability to strike after the expiry of a collective agreement will invariably ‘substantially interfere’ with their s. 2(d)-protected collective bargaining rights.
“This does not require a case-specific inquiry into precisely how eliminating the right to strike has affected the collective bargaining process in the particular circumstances. Moreover, while the question of whether interest arbitration serves as a constitutionally adequate substitute for the right to strike may be an important factor in the s. 1 justification analysis, it has no bearing on the threshold question of whether eliminating the right to strike violates s. 2(d).
“It follows that the application judge’s detailed assessment of the evidence about how the TTC Act has affected collective bargaining between the TTC and its unionized employees was unnecessary at the s. 2(d) stage of his Charter analysis. However, the time he devoted to this was not wasted, because he would still have had to consider this evidence once he got to his s. 1 analysis.”
However, he still concluded that “since the TTC Act entirely eliminates TTC employees’ ability to strike during the collective bargaining process, it necessarily follows that the legislation ‘substantially interferes’ with their s. 2(d) collective bargaining rights to such an extent that these rights are infringed.”
The parties had disagreed about how the legislative object of the TTC Act should be characterized. According to Ontario, the objective was preventing disruptions of TTC services. The respondents said that this stated objective was overly broad and “conflate[d] the objective with its means.”
“Strikes are disruptive by nature,” said Justice Dawe. “I agree with the respondents that if the objective of the TTC Act were framed as merely banning strikes to ‘prevent disruptions to TTC services,’ this would essentially amount to saying that the purpose of banning strikes at the TTC was to ban strikes.
“However, I do not agree with the respondents that the application judge was correct to re-frame the Act’s legislative objective by asking whether Ontario had demonstrated that the TTC is an ‘essential service.’ This further step was analytically unnecessary and led the application judge to confuse the threshold screening at the first stage of the Oakes test with the balancing that must be conducted at the second stage of the Oakes analysis.”
He added that “even if one were to assume that a future TTC strike could eventually cause such severe harms that back-to-work legislation would become justified under s. 1, it does not automatically follow that this gives the legislature a proper s. 1 justification to pre-emptively ban all TTC strikes before they start.”
Justice Dawe dismissed the appeal, upholding that “the TTC Act violates s. 2(d) of the Charter in a manner that has not been justified under s. 1.” He further upheld the declaration that “the Act is of no force or effect under s. 52 of the Constitution Act.”
Justice Ian Nordheimer dissented from the majority, discussing why it was important to determine whether the TTC was an essential service, as evidence was presented to claim such.
“In my view, in light of the preamble to the legislation, and the purpose of the legislation as expressed when it was introduced in the Legislature, it is clear that its objective was to maintain the operations of the TTC because it is an essential service,” he said.
“I disagree with the application judge’s conclusion to the contrary. I also disagree with my colleagues’ view that this error ‘was more one of form than of substance’. In my view, it was a fundamental error in the application judge’s reasoning and one that infected the balance of his analysis.”
“I conclude that the TTC meets the appropriate standard to be considered an essential service as that term is properly understood in this context,” he added. “The disruption of TTC services would clearly result in serious harm to a portion of the population — a portion that is particularly vulnerable.
“People who are prevented from getting to work and earning income, people who cannot buy food and people who cannot get to medical treatments are not instances of mere inconvenience. To portray them in that fashion does them a tremendous disservice. It is also unfair. The TTC Act therefore satisfies the first part of the two-part test from Oakes.”
He found that the application judge, in the minimal impairment analysis, did not consider the labour history, lack of evidence as to it and the effectiveness of other approaches used elsewhere and also did not give “appropriate emphasis to the unique nature of the TTC in terms of its size, its complexity, and the importance of its functioning” to Toronto and the greater Toronto area.
“Further, the application judge did not consider the provisions in the TTC Act that provide for compulsory arbitration. This marks a significant distinguishing factor between this case and the case that was before the Supreme Court of Canada in SFL.”
He found that the appellant has met its burden “to explain why there were not reasonable alternatives that could achieve the desired objective with less impairment of the right to strike.”
He would allow the appeal, set aside the below decision and dismiss the application.
Counsel for the appellant the Attorney General of Ontario were Rochelle Fox, Daniel Huffaker and Priscila Atkinson.
Counsel for the respondent Amalgamated Transit Union, Local 113 were Ian Fellows, Joanna Birenbaum, Kristen Allen, Emily Home and Adriana Zichy of Ursel Phillips Fellows Hopkinson LLP.
Counsel for the respondent Canadian Union of Public Employees, CUPE Local 2 were Elizabeth Nurse and Devon Paul.
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