Thread by @TheLawofWork

And I'm back in the hearing!

But I'm not sure where we are at. AG Counsel Robin Basu is talking. Will take a minute to catch up.

What are you all having for breakfast?

Was asked if OLRB hearings have ever gone this late before?

I remember this case involving 'unlawful strike' at TTC.

Chair Whitaker got the application at 4:30 a.m., held a phone hearing overnight (without union counsel present), & issued a decision.

canlii.ca/t/1nftc

Basu is addressing CUPE's argument that OLRA must be interpreted consistent with "Charter values", which includes respecting rights to collective bargaining and to strike.

He argues that Charter values includes "notwithstanding clause". And Charter values are "fraught".

Interesting to hear the government argue that "Charter values" include the notwithstanding clause, which of course overrides all Charter rights and freedoms.

Basu: Public education is critical to human development. Interruptions due to labour disputes fall hardest on most vulnerable.

He is arguing that assessing Charter values is difficult and conflicting. There are competing values at play here.

Basu: If you considered all Charter values at play here, on balance they favour granting the declaration that this is an unlawful strike.

Charter values under s. 2(d) are "irrelevant" to mid-contract strikes. #SCC was discussing strikes when no collective agreement in place.

Basu now arguing that OLRB isn't even considering whether "strike" def'n in OLRA.

OLRB is considering the def'n of 'strike' in Bill28, which allows the def'n of 'strike' to be unconstitutional. Because of notwithstanding clause.

😯

So in other words, govt argues that if strike definition in OLRA violates Charter, it doesn't matter here, because when Bill28 incorporated the def of 'strike' from the OLRA, that def automatically was covered by notwithstanding clause.

This is a really important issue.

CUPE's arg is that OLRA def of strike violates Charter if it prevents labour protests like that which CUPE is engaged in. If so, then OLRB must read def to apply with Charter and it is that Charter compliant def that was added to Bill28.

If OLRB rules that Bill28 incorporates the OLRA definition of 'strike' that violates the Charter, and that the notwithstanding clause in Bill28 then shields that unlawful def from challenge, then CUPE's chances of winning this case fall dramatically.

If govt is correct, it means a govt can take a statute that is ruled unlawful (violates Charter), incorporate statute into a new Bill with a notwithstanding clause, and POOF, the unconstitutional law becomes constitutional.

Easy road map for sleazy govts to trump Charter rights.

Then again, Ontario government here could have just added a new definition of 'strike' into Bill28 rather than incorporate the OLRA definition and all of this would likely have been moot.

It's because Bill28 specifically incorporates the OLRA def of strike that we are here.

OLRB now asking about Section 10 of Bill28, why is it there? What does it add?

OLRB: Why do we care about the "purposes of the OLRA"? This language must mean something. Seems to suggest union can challenge the unlawful strike argument under Bill28 or OLRA.

Interesting point.

Should say that if CUPE wins this argument about the effect of incorporating an unconstitutional definition from the OLRA into Bill28, a certain Premier is going to lose his breakfast.

Now govt is arguing that there has been no Charter breach under OLRA anyways.

- Freedom of Ass doesn't protect mid-contract strikes.

- Freedom of expression protects picketing, but not unlawful withdrawal of work.

Reference to Charter sections:

s. 2(b) Freedom of Expression
s. 2(d) Freedom of Association
s. 15 Equality Rights

Basu:

"I'm sure a lot of young people are watching"

Lol. It's 9 am on a Sunday morning and this is a Labour Board hearing. Doubt it.

Basu: Striking to resist a legislatively deemed collective agreement is not protected by FOA.

FYI, none of the Charter cases on the right to strike have dealt with the question of whether FOA protects a right to strike/walk off job DURING A COLLECTIVE AGREEMENT.

Basu: This CUPE action is about withdrawing services (not working). This isn't about expression during off hours. Bill28 doesn't prevent off hour protests at Queens Park.

Basu: If workers can just walk off the job (strike) during a collective agreement whenever they are angry about public labour policy, then the entire Labour law model we use crumbles.

Sidebar: The NLRA in the US, which our model is based on, doesn't ban mid-contract strikes.

The mid-term strike ban in Canada ('peace obligation') was put into Canadian model in 1940s because original purpose of our law was to put an end to 'unlawful' strikes during World War II.

Canadian labor law was about restricting strikes, not about creating a right to strike.

BUT

Law also included a trade-off. It limited when workers can lawfully strike, but in exchange for this limitation, govt ordered employers to bargain in good faith & protected strikers if they strike during bargaining.

Govt now wants peace obligation w/out the quid pro quo.

This is important. Ontario has withdrawn from 80 year long compromise that is foundation of our system.

It has imposed an even greater restriction on right to strike (complete ban) WHILE also refusing to bargain in good faith.

OLRB Chair asks, is it just "too bad, so sad"?

OLRB Chair question: Isn't there something wrong with a system that just allows a govt to completely strip bargaining rights & destroy the historical compromise & then say "tough" to the workers?

Puts govt lawyer in position of having to say: "fairness has nothing to do with it"

Now Basu is referencing how Quebec just overrides people's rights all the time with notwithstanding clause.

That's where we are at folks. Ontario is now justifying its draconian use of notwithstanding clause by arguing "LOOK, QUEBEC GETS AWAY WITH THIS ALL THE TIME".

Sad day.

And of course this is one of the HUGE concerns at play here, why the entire labour movement is behind CUPE.

If governments decide to use notwithstanding clause as simply a collective bargaining hammer, then we are basically no longer a real democracy. Govt just imposes contracts

Govt arguing that we cannot have a system in which people can just walk off the job en masse whenever they are angry at public policy.

He is pointing to case law that finds that any walkout during a collective agreement is an unlawful strike, regardless of the reason for walkout

Govt arguing that when Charter argument has been made, courts & labour boards have found that ban on mid-term contracts, even if a violation on s. 2(b) or s. 2(d), it would be saved by s. 1 of Charter.

s. 1 of Charter allows govts to violate Charter rights if justified.

If interested, here is summary of test applied under Section 1 of Charter from my Law of Work book.

If defn of 'strike' violates the Charter, then Ontario would need to argue that the definition should be 'saved' by s. 1 because it is justified in a free & democratic society.

Son has a hockey game I need to leave for at about 1:15 pm, so can the OLRB and parties please ensure this hearing is done before then.

Thank you,
Professor David J. Doorey, esq.

Govt lawyer Basu knows his stuff on the Charter. Basu and Barrett (for CUPE) are among a small cadre of Canada's top Charter litigators on the scope of labour rights under the Charter.

Great show for those interested in Charter litigation.

A lot of case law discussion by govt lawyer. Basically he is noting that CUPE workers and others have lots of space for political protest, expression over Bill28.

However, the Charter does not spare people from the consequences of unlawful conduct.

Govt lawyer: Nonunion workers, if they just left work one day to go to a protest at Queens Park, could be fired.

Nothing in the Employment Standards Act protects that worker. And the Charter does not require that right to leave work be read into ESA.

Sidebar: One of the big issues looming in Canadian labor law, which I have been writing about for years, is whether law should protect a right of non-union workers to strike.

Nonunion workers have a right to strike over working conditions in the US. Not here.

If interested in the idea of how a 'right to strike' for non-union workers will eventually come to Canada, check out my paper on the Future of Labour Law here:

papers.ssrn.com/sol3/papers.cf…

So, to summarize govt's argument long argument:

- Workers have no right to strike or protest under Bill28 bc of notwithstanding clause. Doesn't matter if OLRA def of 'strike' violates Charter.

- In any event, def of 'strike' in OLRA doesn't violate the Charter anyways.

My arg on bad faith bargaining complaint was:

- B4 Bill28 passed, Lecce said multiple times that govt would not bargain unless CUPE promised not to strike

- That violates s. 17 of OLRA (bad faith bargaining)

- Bill28 doesn't retroactively save govt breach s17

This not argued.

Govt lawyer now responding to CUPE claim that imposed collective agreement was overall worse than what was being bargained

This I think is potentially relevant to CUPE's overarching argument about government not having 'clean hands', which goes to exercise of OLRB's discretion.

Now Basu is noting that government lawyers are getting offensive emails from the public.

This is totally inappropriate. As I have said multiple times on this thread over the last couple of days, the enemy is not the lawyers! They are doing their job.

Grow up people.

Govt lawyer now summarizing the main argument that only question OLRB has to answer is whether there is an unlawful strike happening. And clearly the work stoppage meets the def of a 'strike'.

Therefore, the OLRB should declare an unlawful strike.

Govt lawyer now walking through Bill28's prohibitions on strikes.

Govt arguing that the OLRB has no discretion under Bill28 to decline to declare an unlawful strike if there is an unlawful strike.

Bill28 takes away that discretion.

I'm blocking anyone who is arguing that government lawyers are fair game for criticism because you are mad at the government. They are not. I have zero tolerance for abuse of lawyers who are doing their job.

OLRB chair is pushing govt on this claim that he has no discretion at all.

Govt is arguing that because the strike is ongoing, the OLRB MUST declare it unlawful.

CUPE is arguing that the OLRB does have discretion and it should use it to reject the govt's application.

Here is s. 100 of the OLRA again. It says "may" declare an unlawful strike. That is discretionary, not mandatory. This is what we are arguing about now.

Govt is arguing essentially that if a strike is ongoing, the "may" should be read as "must".

OLRB now asking about @osbcucscso, which is not named in the pleadings at all and no allegations are made against it.

Govt says that this organization is subsumed under "CUPE".

OLRB is doubting this. Barrett for CUPE says no order can be made against @osbcucscso.

OLRB: What about @FredHahnCUPE, who is listed as head of CUPE-Ontario, but CUPE-Ontario isn't a union. There is no evidence that Fred Hahn is an official of CUPE.

[Note that OLRB is asking, if he makes an order, who could that order be against?]

Basic legal point:

A tribunal can only make an order against a legal person (human or corporation or union, etc), and only if there is evidence before the tribunal showing that person broke the law.

Fact that OLRB is concerned enough to push government hard on who & which entities he could make an order might suggest he is leaning towards making some sort of unlawful strike order. But not necessarily.

Remember, an unlawful strike order is precondition for going after fines.

Govt: 55,000 CUPE members have walked off the job, and millions of students not getting education & CUPE says not returning. OLRB must bring this to an end.

Govt is repeatedly driving this point over and over.

Okay folks, govt is almost done and I need to leave for hockey. Go Red Wings!

What will happen now?

I suspect the Chair will go away and write a quick 'bottom line' decision today that indicates whether he is making an order of an unlawful strike or not.

/1

He could accept any of CUPE's arguments & decline to issue any order at all.

Or he can declare an unlawful strike. If he does, he can simply make that declaration & do nothing more. Or he can also issue a cease and desist.

Here is what OLRB issued in 2013 teachers' strike.

/2

As to what happens if a cease and desist is ordered and workers don't return to work tomorrow?

Well, that is a long and complicated story for another day.

Be well everyone//