Thread by @TheLawofWork

This morning's #OLRB hearing in Min. of Education v. CUPE begins at 9 am. Watch it here:

I will comment until I need to be a dad.

First up: OLRB decision on whether @Sflecce & another senior govt official can/should be ordered to appear as witnesses.

Recap:

1. OLRB denied intervenor status to other ONT unions. This will speed up the hearing, which is govt's goal.

2. OLRB permitted govt to fix a mistake in name of respondent, from CUPE-ONT to CUPE.

3. OLRB reserved on CUPE's request for @Sflecce to be summons to testify.

Today the case will move into actual merits of case.

Govt is seeking a declaration that education workers are engaged in an unlawful strike supported & encouraged by CUPE leaders.

OLRA, s. 100 grants OLRB a discretion to make orders re unlawful strike

canlii.org/en/on/laws/sta…

OLRB "quashes" summons for @Sflecce. Parliamentary privilege protects him from having to testify.

But Andrew Davis must testify if CUPE wants to examine him. I believe he's an Ass Deputy Minister, not sure. CUPE also entitled to documents.

So, what's happening here is this:

CUPE is arguing that govt's behaviour, motives during lead up to #Bill28 are relevant to whether OLRB should exercise discretion to make orders under s. 100.

This will be interesting, cuz we will learn some inside govt workings.

CUPE might argue that govt always or very early on decided it was going to legislate a contract, ban strikes, & use notwithstanding clause.

If true, then collective bargaining was a sham. This would be relevant to OLRB's discretion to grant a remedy to govt.

Right now, the parties are arguing about the scope of documents that need to be produced by govt & what is relevant.

Barrett for CUPE is using every opportunity to point out the draconian, unprecedented nature of the assault on labor rights in #Bill28.

Barrett: "At least the government has some grace in its arrogance" by allowing parties to appear before the OLRB and argue whether there's an unlawful strike and what if anything should be done about it.

Grace in Arrogance is the name of my next album.

On a break so govt lawyers can consult about doc production.

Little known fact: Robin Basu, lead lawyer for Ontario AG, was a guest at my wedding. Very smart guy. A bunch of other wedding guests are now judges.

This just reminds me that I have under-achieved.

An important point:

The govt's goal in this #OLRB case is to get a declaration that #CUPE members are currently engaged in an unlawful strike, & that CUPE's leaders orchestrated this.

That declaration is necessary so govt can then go to court to get fines ordered.

...

OLRB does not itself order the incredibly draconian fines included in #Bill28

To get fines, govt needs to prosecute offenders in court. This is like a criminal proceeding. Usually govt would need permission of the OLRB to prosecute, but Bill28 exempts this requirement (s. 9(5))

So in terms of imposition of the ridiculous fines in #Bill28, this OLRB hearing is only step 1.

It's very rare for breaches of labour statutes to result in prosecutions, in part cuz OLRB requires proof prosecution would advance collective bargaining interests. Here's test:

The Ford government didn't want to deal with the OLRB considering whether ordering of fines makes labour relations sense. Heaven forbid.

So in Bill28, it included a section saying the govt can prosecute regardless of whether it makes any sense. OLRB watchdog role is removed.

People smarting than me have told me there are interesting issues that could arise if and when the govt tries to prosecute people for an unlawful strike.

Issues related to the Charter rights of the accused. But I will leave those issues to more knowledgeable folks.

Anyways, you should be starting to grasp that process is not a simple slam-dunk for this anti-worker government to just walk into labour board and collect hundreds of thousands of dollars in fines from relatively low wage, mostly female workers.

More complicated than that!

Still on break at OLRB hearing as parties discuss doc disclosure.

If you want to read how OLRB dealt with walkout by GM workers during Mike Harris Days of Protest, read this decision:

canlii.ca/t/fmqbt

OLRB declared unlawful lockout, but did nothing more.

.../

Keep in mind that the GM case was argued before #SCC had recognized a constitutional right to collective bargaining, strike. Board said broad defn of strike didn't violate Charter.

CUPE is asking OLRB to revisit the Charter arg in light of Charter developments since 1990s.

Let me review CUPE's Charter argument as I understand it:

1. #Bill28 incorporated defn of 'strike' from OLRA

2. Applying that defn, there's no strike here. BUT if this is a 'strike', then defn in OLRA violates Charter

3. OLRB needs to decide if OLRA defn breaches Charter
/

4. If OLRB finds defn of 'strike' in OLRA violates Charter by preventing right to protest- expression - or restricting association, then OLRB must read defn to be Charter compliant: permits protests like this.

5. #Bill28 incorporated the Charter-compliant defn of strike

/..

6. Since 'strike' in Bill28 = 'strike' in OLRA, if defn doesn't include protests like this, then NO violation of Bill28 has occurred.

7. Since Charter challenge is to 'strike' defn in OLRA (not Bill28), 'notwithstanding' clause doesn't apply

Follow?

While we're on break in the hearing, and because I suspect I have some high school teachers following along today:

I've been working on a module on Work Law and Workers' Rights for use in Ontario high schools courses. Working with @OJEN_ROEJ.

Could you use this in a class?

Ok, they're back. Missed a couple of minutes walking the dog.

Looks like the govt is now about to begin its case on the merits.

Saddle up!

Govt: There is an unlawful strike ongoing that began on Friday Nov 4. Govt wants it ended asap. OLRB's job is to deal with unlawful strikes, but this situation is 'unique' because of its huge impact on millions of Ontarians.

Fact that CUPE workers did not attend work is clear

Gvt: Ontarians need decision asap to get 'things back to normal' on Monday

Test for unlawful strike is clear: 3 questions

1. Was there a collective agreement in place? Yes (because of Bill28 forced contract)

2. Has there been concerted effort to shut down work? Yes.

3. Was concerted effort encouraged, promoted by CUPE? Yes.

This is a coordinated, large-scale withdrawal of work.

Govt lawyer now referencing specific sections of legislation.

This is now the govt's legal argument on whether action is unlawful strike.

#Bill28 passed Nov. 3. The deemed forced collective agreement came into force then. Strike during a collective agreement is unlawful.

Now lawyer referring to definition of "strike" in OLRA.
Here it is.

The rule that Canadian workers can't strike during a collective agreement dates back to the 1940s when Canada first introduced modern collective bargaining legislation.

Purpose of the law was to reduce strikes. In US, mid-term contracts not unlawful unless ER bargains this.

Bill28 also bans strikes during a collective agreement.

To be clear, Canada has among the most narrow rights to strike in the world in terms of when a strike is permitted.

I explain this point and compare US labor law in this post on Harvard Law School's @OnLaborBlog:

onlabor.org/the-ideal-righ…

Govt: It is 'clear' that there is unlawful strike activity occurring now. This is a work stoppage during a collective agreement.

This is also a 'concerted refusal to work', as per the defn of 'strike'. This is a 'work stoppage'. Doesn't matter if you call it a 'protest'.

Note that Ontario's defn of 'strike' is broader than in other places. For example, in Manitoba, a strike must be for the purpose "of compelling their employer to agree to terms and conditions of employment".

With that language, a political protest is clearly NOT a "strike".

Govt is now showing @cupenat Tweets talking about the walkout to demonstrate that this is a planned "work stoppage".

Tweets as evidence.

Like my Tweet last night about my dinner is evidence that I ate chicken stir-fry last night.

If you are interested in when strikes are legal in Canada, check out this chart from my Law of Work textbook.

Tweets are being entered to show that union officials were calling the action a "strike" and also that they are saying they won't stop the "strike" until the government repeals Bill28 and returns to the bargaining table.

Govt using this to argue that legal intervention needed.

Govt now arguing that "schools were not closed". They were open, but "closed to students". CUPE members could have come to work.

This is a response to arg't that it can't be a strike to not come to work when the workplace is closed.

Govt now noting that CUPE gave notice of strike before Bill28, as it is required by School Boards Collective Bargaining Act.

Govt lawyer argues that once Bill28 was introduced (not passed), any talk of a strike was unlawful.

Narrator: Very dubious argument.

Govt argues that once CUPE 'knew' that Bill28 would strip their Charter rights to collective bargaining and strike, it needed to stop talking or planning a strike.

Don't agree with this line of argument. A Bill is not law until it receives Royal Assent. Law might have changed.

Govt again arguing that "schools were not closed" and that CUPE members could have just shown up. They didn't show up because they were on strike, not because schools had already announced they were closing.

I actually don't know if everyone other than students and CUPE members went to work on Friday.

Didn't see any activity at the local high schools around me on my dog walk yesterday.

(Would have been a fun twist if CUPE workers HAD just showed up at work yesterday.)

Govt lawyer mentions that Ontarians are donating their $200 bribe money from the Conservatives to the CUPE fund.

If you want to do that, maybe there is a donation link somewhere? 🤷‍♂️

Okay, this could go on for a while.

But basically Govt lawyer Murji is doing a good and thorough job of walking through the evidence that supports govt argument that this is a strike, organized by CUPE, during a collective agreement, and therefore unlawful.

People should direct their anger and frustration at @fordnation, @Sflecce and the politicians who supported this unprecedented attack on Ontario workers.

Not the lawyers who are given the unenviable task of spending their weekend trying to defend it in a public forum.

Meanwhile, money continues to flow into CUPE and their members.

One might question whether spending an entire weekend arguing over the meaning of the word 'strike' is the best use of public resources.

People could be bargaining. An interest arbitrator could be at work.....

On another break folks. Go get some fresh fall air.

Or, if you are loving your weekend of Labour Law, spend some time scrolling around my blog The Law of Work:

lawofwork.ca

Over 15 years of content examining issues in Labor and Employment Law.

We're back. Now govt lawyer is referring to case law that supports govt position.

Discussing protest by @ETFOeducators in 2013 vs Tories 'Putting Students First" Act. MOE brought unlawful strike application. OLRB decision here:

canlii.ca/t/fvlhs

Decision:

Board in the ETFO case found an unlawful strike occurred and declared as much. Here is what the OLRB ordered in that case in exercise of its discretion.

Government's main point is simple:

If workers as a group agree to not report to work, they are engaged in an unlawful strike. The reason why they didn't report to work is irrelevant. Motive isn't an element of the strike defn in Ontario.

BTW, this argument that Labour Relations legislation bans political protests is controversial. Lawyer is correct that the defn of 'strike' has been interpreted broadly like this.

But some smart folks, like Prof Brian Langille, think this is wrong:

law.utoronto.ca/blog/faculty/p…

Govt lawyer now arguing that OLRB should not enquire into motives of govt in an unlawful strike application in deciding whether to issue an order for an unlawful strike.

This would delay the proceedings instead of giving a quick order as envisioned by the OLRA.

Government lawyer is done!

Now lawyer for Council of Trustees' Association (school boards) is making submissions. These submissions will mostly just mirror the government's.

This is an unlawful strike by CUPE members organized by CUPE leaders. And so forth. We heard all this.

JP Alexandrowicz from @HicksMorley for the Council asked the OLRB: What would happen if the OLRB does not issue declarations of unlawful strike here?

Would strike just go on indefinitely? OLRB has responsibility to end unlawful strikes.

And finally we are onto CUPE's arguments.

Steven Barrett begins by answering the question: What would happen if no order issued?

You would be upholding Canadian labor law as we've understand it since the 1940s and respecting the Charter.

And we're off!

OLRB: When would students get back if I don't issue an order?

Barrett: That is not the concern of OLRB. But there's lots of ways students could get back to school, and anyways, but for this outrageous legislation, workers would be on strike. That's our model.

Barrett now giving a history lesson. Into my world now! The 'peace obligation' is core of Canadian model: trade-off: workers can't strike except in narrow circumstances, BUT law forces ER to bargain in good faith & workers can strike.

Point I was getting at in this interview:

This trade off has been tossed out the window here.

Here, govt imposed terms vs wishes of workers, without bargaining in good faith, and banning right to strike.

Normally, this 'agreement' would not be a collective agreement at all, since not ratified by employees.

Only way we can call imposed agreement a 'collective agreement' is bc Bill28 "deems" it to be one.

So, this case requires us to return to first principles, to consider our labour law model when we answer questions in this case.

Should be some good stuff for labor law nerds.

Now Ben Katz of @GPLLP is taking lead for CUPE.

These workers earn on average less than $30K. 70% are women. No coincidence that govt wanted to block access to Charter AND human rights legislation.

These are precarious workers who govt has targeted in crushing labor rights.

Katz: Govt argument that comments made by CUPE before Bill29 passed should be considered unlawful because the Bill would later make them so should be rejected outright.

Would send a chill thru lawful strike planning.

Now Katz reviewing how few raises these workers have received in last decade. In total, they've received 8.5% wage increases since then, while inflation has been 17.6% over that period.

ER not interested in talking about reasonable wage increases to catch up.

Once CUPE took a successful strike vote and indicated intention to strike, government immediately introduced Bill28.

SIDEBAR: While back, I explained on blog why @Sflecce would LOVE CUPE to not take a strike vote. He heavily criticized CUPE for taking a vote. Remember?

Had CUPE NOT taken a strike vote, govt could have just IMPOSED its' final offer without Bill28:

lawofwork.ca/beware-ontario…

Barrett is now discussing what happened in the bargaining process.

Govt lawyer not happy about this because she argues none of this is relevant to the question of whether the strike is unlawful.

Katz: This attack on workers was planned, premeditated from the outset of bargaining. There was zero chance workers would ever have right to strike. Govt decided education workers CANT strike, & that contracts would be imposed.

Katz showing quotes by Lecce supporting this.

SIDEBAR: In 2011, Ontario Liberals decided TTC workers shouldn't be allowed to strike. The government passed TTC Labour Disputes Resolution Act, which bans strikes & refers bargaining issues to arbitration.

Ford govt doesn't want neutral arbitration.

canlii.org/en/on/laws/sta…

It's almost 6 pm.

Because I know Ontarians want to know, tonight I'm having chicken parmesan. It's almost ready.

Katz: referencing case that say that before deciding whether to grant relief in an unlawful strike application, it must consider the circumstances and behaviour of other side. (didn't catch the case).

Where actions of the other side provoked response, OLRB can decline discretion

OLRB: Surely CUPE knew that the Bill was going to pass?

This is about the point govt making that comments made b4 Bill28 passed about a strike, which were lawful at the time, became unlawful bc Bill28 later passed.

Basically, arg is that once Bill introduced, you must obey it?

Things getting testy again. They are arguing about a chart in CUPE's pleading. Govt says it's inaccurate.

Seems to be about why schools were closed. CUPE said "closed schools". Govt says schools not closed. Only closed for students.

OLRB: Doesn't want to hear any "crap" about CUPE members not attending work Friday because schools were closed.

Soooo ... we know what the Board thinks about that argument. Lol.

Barrett: Just because a Bill is introduced it doesn't mean that it governs behaviour.

[Surely this is correct. CUPE folks don't need to behave as if Bill28 was law before it is law. That would be nuts. Gov'ts often float Bills then pull back provisions after criticism]

Katz again for CUPE: Arguing that these are political protests at Queens Park, not picket lines at schools.

Now CUPE moving to legal argument in support of its case.

Barrett: CUPE workers are engaging in a political protest against #Bill28. Does this fall within definition of strike? If so, then is strike definition a violation of the Charter.

Will begin with #SCC case law on freedom of expression & association.

Wake up folks, this should be interesting. A lesson from a master.

Barrett:

Going back to 1987 Labour Trilogy. SCC ruled FOA does not protect right to strike. But Chief Justice Dickson. dissented. Years later, SCC adopted Dickson's dissent.

Here is the Alberta Reference case Barrett is discussing:
canlii.ca/t/1ftnn

Barrett, discussing Chief Justice Dickson's dissent in Alberta Reference.

Starting at paragraph 22:

[For the love of god, go to CanLII, search "Fraser" and then scroll down to cases cited!!!!!]

Barrett and Robin Basu (who argued for the Ontario government in the later Fraser SCC decision) now making veteran Charter litigator jokes for the whole province.

We're here all night, folks. Have the veal.

We're back. Barrett reading from Chief Justice Dickson's Dissent in Alberta Reference.

Famous passages:

Chief Justice Dickson, SCC 1987:

Collective bargaining, strikes are fundamental human rights in a free society.

* For keeners, I discuss this freedom of association history in this U of T Law Journal paper: "Reflecting Back on the Future of Labour Law"

papers.ssrn.com/sol3/papers.cf…

Now Barrett moving onto SCC decision in BC Health Services (2007). Here it is for those of you who want to follow along:

canlii.ca/t/1rqmf

This is first case when SCC finds that freedom of association protects a right to collective bargaining.

From BC Health Services, SCC reviews why judges have said that Section 2(d) freedom of association does NOT protect collective bargaining.

Then SCC refutes each (para 24-30) on its way to concluding that s. 2(d) DOES protect a process of collective bargaining.

Barrett, lesson from BC Health Services:

CUPE workers are entitled under Charter to a "process of collective bargaining" without government interference, not to a specific bargaining outcome.

[In my U of T Law Journal paper mentioned above, by the way, I did have the foresight to predict that Doug Ford's government may be the first to start using notwithstanding clause to abolish the right the strike!]

Barrett still discussing history of 'Wagner Model' of collective bargaining we use in Canada.

Called 'Wagner Model' after U.S. Senator Wagner who shepherded thru the National Labor Relations Act in 1935. Canada imported basic elements of that model in 1940s.

From BC Health Services, Charter protects workers from "substantial interference" with freedom of association.

Barrett now moving onto SCC decision in MPAO. Here it is: canlii.ca/t/gfxx8

That case considered a law that forced police to bargain thru an organization they didn't choose. SCC rules that law violated freedom of association.

Reminder that I explain all of this Charter history in lay-person's terms in my introduction to the Charter and Work, which you can download free here:

papers.ssrn.com/sol3/papers.cf…

SCC again confirming that Charter freedom of association guarantees a right to collective bargaining.

From MPAO (2015):

Reminder of what we are doing here:

CUPE is arguing that Freedom of Association in the Charter protects collective bargaining and strikes.

This is background to their argument that definition of 'strike' in OLRA cannot be interpreted to block exercise of Charter rights.

Next case will be SFL (2015), where SCC ruled that freedom of association in Section 2(d) of Charter protects a right to strike.

Here is the case: canlii.ca/t/gg40r

Case challenged a law prohibiting strikes by public sector workers.

SFL decision is where SCC formally adopts Chief Justice Dickson's dissent from Alberta Reference in 1987.

Right to strike is the 'powerhouse of collective bargaining'. It is what makes collective bargaining meaningful. Otherwise, it is just collective begging.

SFL: If strike is limited by law in case of true essential services, a neutral system of interest arbitration must be substituted.

Note that Ford government wanted nothing to do with neutral interest arbitration for education workers. That's why it used notwithstanding clause.

Barrett, summarizing:

OLRA codifies freedom of association as required by Charter.

"strike" defn in OLRA must be read to comply with Charter (below)

How can another statute prohibit workers from exercising collective bargaining & strike rights that OLRA designed to protect?

Now Barrett discussing OLRB decisions on meaning of "strike".

Helligear: canlii.ca/t/h5p53

When deciding whether to exercise discretion under OLRA (ie to declare an unfair strike), OLRB must consider "Charter values":

OLRB: Has there ever been a case like this?

Barrett: No. No government has ever thought of crushing Charter rights by using the notwithstanding clause.

The man has a point there/

Barrett:

The only option these workers have left is to protest the stripping of their fundamental Charter rights by protesting. And the OLRA protects that right.

OLRB: What do you say about the kids?

Barrett: CUPE is trying to bargain terms that will improve education for kids. What if govt had not violated Charter rights? Well, normal process would have moved forward. Strikes cause inconvenience. We have interest arb if real problems.

Barrett now discussing what I was taking about 100 hours ago in this very thread. About how Bill28 removes the OLRB's gatekeeper role to decide when protections are allowed to collect fines.

Barrett arguing OLRB should not help govt go after fines by declaring unlawful strike.

Now OLRB Chair giving a history lesson on the notwithstanding. Saying the clause was a concession to get agreement from all provinces.

Ontario had a right to use NWS clause, even if we don't like it.

[I've kind of lost the thread of what we are debating. lol]

And my lord, my greatest respect for Mr. O'Bryne, chairing this OLRB hearing. What a job to be assigned.

And he still needs to go off and quickly write a decision.

We salute you, sir.

Oh good, Barrett is also confused about what we are talking about now.

Lol.

I was recently chatting with Mr. MacDowell, former OLRB Chair. Pretty sure he has some opinions on all of this. He recently posted an interesting piece on my Law of Blog (FYI):

"Who Defines Bargaining Units After the Constitutionalization of Labour Law?
lawofwork.ca/charterbargain…

Okay fine folks, its 9 p.m. and I'm afraid I need to sign off for the evening.

Life has interfered with this noble cause of live tweeting this very important case. As an author of multiple books on the subject, I can say that what the Ford govt is doing here is very scary.

I will write up a summary and analysis of the decision and post it on my Law of Work blog in the days to come.

lawofwork.ca

Thanks for hanging out with me today.

DD//