Doug Ford’s controversial wage-cap law ruled unconstitutional

A court has struck down Premier Doug Ford’s controversial Bill 124, which limited most public sector workers in Ontario to annual wage increases of one per cent and has been blamed for an exodus of health-care workers during the pandemic.

Thestar.com
Nov. 30, 2022
Kristin Rushowy
Rob Ferguson

A court has struck down Premier Doug Ford’s controversial Bill 124, which limited most public sector workers in Ontario to annual pay increases of one per cent and has been blamed for an exodus of health-care workers in the pandemic.

A ruling from the Ontario Superior Court of Justice on Tuesday found the wage restraint legislation -- passed as an austerity measure to put the province on the path to a balanced budget before the emergence of COVID-19 -- violated Charter rights to collective bargaining.

“I declare the act to be void and of no effect,” Justice Markus Koehnen wrote in an 80-page decision hailed by the Ontario Nurses’ Association and other unions as a “hard-fought win.”

“On my view of the evidence, Ontario was not facing a situation in 2019 that justified an infringement on Charter rights,” the justice added.

“Unlike other cases that have upheld wage restraint legislation, Bill 124 sets the wage cap at a rate below which employees were obtaining in free collective bargaining negotiations.”

The Ford government said it is “reviewing the decision.”

“Our intention is to appeal,” added Andrew Kennedy, press secretary to Attorney General Doug Downey. He did not indicate on what grounds an appeal would be based.

Unions involved in the court challenge of the bill and opposition parties urged the government to take the off-ramp provided in the ruling and not appeal amid concerns such a move would worsen the shortage of health-care workers leading to longer waits in hospitals that are already swamped.

“It’s disappointing because this is a real opportunity to turn a page,” said Fred Hahn, Ontario president of the Canadian Union of Public Employees representing tens of thousands of hospital, health-care and education workers.

“Now is not the time for an appeal. Now is the time to move forward.”

An appeal would be a “slap in the face to workers,” said JP Hornick, president of the Ontario Public Service Employees Union.

The province’s independent Financial Accountability Office warned in September that it could cost the province up to $8.4 billion if a court struck down the bill, “assuming retroactive pay increases” and the end of wage restraints. The controversial law was to have saved the government $9.7 billion during its lifetime, the FAO said in a report in September.

Koehnen said another hearing will be scheduled to determine the “remedy” following his ruling.

In the past, interfering with collective bargaining has proved costly. In 2012, the Liberal government passed Bill 115, freezing the pay of teachers and education workers. It was found to have “substantially interfered” with bargaining and the province has since paid out more than $212.5 million to teacher and support staff unions.

“Bill 124 was a direct attack on teachers and education workers,” Karen Brown, president of the Elementary Teachers’ Federation of Ontario, said Tuesday.

The court ruling was quickly applauded by unions that launched the court challenge against the legislation, which exempted male-dominated fields such as police and firefighting.

“This was an attack on women workers of the province,” said Karen Littlewood, president of the Ontario Secondary School Teachers’ Federation.

Littlewood said the decision, coming on the heels of the government’s recent rescinding of a law that imposed a contract on CUPE school support staff and pre-emptively tried to ban them from striking, shows the government “has been proven wrong.”

It’s been a few “bad weeks now” for the government, she added.

Unions said they expect to return to the bargaining table to reach “respectful and fair” collective agreements with the government and other employers, such as hospitals and school boards.

“Front-line nurses deserve the respect and rights that all Canadians enjoy,” said Bernie Robinson, a registered nurse and interim president of the Ontario Nurses’ Association.

“Hopefully this will bring back some of those health-care workers who felt so disrespected over this bill,” added Sharleen Stewart, president of SEIU Healthcare, whose union represents nurses, personal support workers and others.

The lawsuit went to court this fall. Unions said the law violated a section of the Charter of Rights and Freedoms that guarantees freedom of association.

Opposition parties -- which had joined unions in their push to have Ford repeal Bill 124 -- said an appeal would make a bad situation worse.

“At a time when our health-care system is struggling, this government clung to a piece of legislation that destroyed a relationship with nurses and front-line health-care workers at a time when we really needed them, so the government has to do the right thing now,” interim Liberal Leader John Fraser told the Star.

“Mr. Ford’s wage-capping legislation has created staffing crises in key sectors like education and health care,” said interim NDP Leader Peter Tabuns.

“Doug Ford must not waste any more taxpayer money fighting for this terrible piece of legislation,” added Green Leader Mike Schreiner.

Collective bargaining is protected under the Charter of Rights following a 2007 Supreme Court of Canada ruling. Ontario government lawyers disputed the unions’ position that the legislation substantially interferes with collective bargaining.

Bill 124 impacted about 780,000 employees in the broader public sector including nurses and teachers, and covered any agreements negotiated after it was enacted in 2019.