Ontario Court of Appeal rules TTC Act unconstitutional

In Amalgamated Transit Union, Local 113 v. Ontario, the Ontario Court of Appeal (“ONCA” or the “Court”) decided that the Toronto Transit Commission Labour Disputes Resolution Act (the “TTC Act”) violated the section 2(d) freedom of association rights of union members, guaranteed under the Canadian Charter of Rights and Freedoms (the “Charter”) and the violation could not be justified under the Charter’s section 1 reasonable limitation provision.

This decision is important for public sector employers and may have a long-lasting effect on the Ontario legislature’s ability to prevent strike action from public sector unions.

The impugned legislation was the 2011 TTC Act passed by the Ontario legislature. The Act eliminates the right of a Toronto Transit Commission (“TTC”) worker to engage in any form of strike activity while also barring the TTC from locking out its employees. Additionally, if the TTC and its unions are unable to come to a resolution through collective bargaining, the TTC Act mandates that the parties submit to binding interest arbitration.

Amalgamated Transit Union, Local 113 and CUPE Local 2 (collectively, the “Unions”), applied to the Ontario Superior Court (“ONSC”) to challenge the TTC Act on the grounds it violated their section 2(d) Charter rights. The ONSC application judge agreed with the Unions and applied the ruling in the Supreme Court of Canada’s (”SCC”) 2015 decision Saskatchewan Federation of Labour v. Saskatchewan (SFL), which found that the right to strike is an integral part to the section 2(d) right of freedom of association.¹

The Crown appealed.

First, ONCA determined if the application judge had erred in finding that there was a section 2(d) violation. ONCA affirmed a recent SCC decision, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec,² and agreed that the correct test to use for determining section 2(d) infringements is the two step “substantial interference” test which asks:

1. If the activities in question are protected under section 2(d); and
2. whether the government action has, in purpose or effect, substantially interfered with these activities.³

Drawing from the SFL decision when applying the foregoing test, ONCA ruled that any law that entirely eliminates an employee’s right to strike will invariably substantially interfere with their section 2(d) Charter rights.⁴ Legislation that completely bans pre-emptive strikes may still be constitutional – that is justified under section 1 of the Charter – if the law provides for an alternative dispute resolution method.⁵ However, the presence or absence of a fair and effective alternative to striking has no basis on the section 2(d) analysis, it only becomes significant at the section 1 justification stage.⁶ The majority justified the foregoing by explaining that freedom of association would make little sense if legislatures were always free to replace the ability to strike with mandatory binding interest arbitration, without being forced to justify it under section 1 of the Charter.⁷

As such, the majority confirmed that the TTC Act violated the Union’s section 2(d) rights.

The Crown had the burden of justifying the section 2(d) violation under section 1 of the Charter, through the justification test set out in Oakes.⁸

At the “pressing and substantial objective” stage of the test, the majority disagreed with the application judge and felt that the legislature’s purpose of passing the TTC Act was to prevent serious public health and safety concerns that would result from a TTC shutdown, and that this was a pressing and substantial objective.9 The majority also did not believe that the consideration of whether the TTC was an “essential service” should occur at this stage and instead, felt it should be moved to the second stage of the justification test. However, the majority did defer to the application judge’s finding that the TTC was not an “essential service.”¹⁰

The majority did not show deference to the legislature at the “minimal impairment” stage of the justification test. The Court’s majority felt that the Ontario legislature adopted a complete strike ban without first studying any other hybrid strike models.¹¹ Ultimately, the Court’s majority felt that the Crown did not meet its burden to show that legislative models in other jurisdictions which used hybrid strike models – instead of a total ban on strike action – would not work in Toronto to adequately protect the governments objectives.

The Court found the law was not minimally impairing and thus, the TTC Act’s violation of section 2(d) could not be upheld by section 1 of the Charter, therefore making the legislation unconstitutional.

Justice Nordheimer was the sole dissenting judge of the Court in this decision. While he agreed with the majority that the TTC Act was a violation of section 2(d), he disagreed that the violation was not justified. In his view, the application judge was incorrect in reaching the conclusion that the TTC was not an essential service and that the phrase “essential service” should not be defined so narrowly.¹² Unlike the majority, he felt that at the “pressing and substantial objective” phase, the TTC must be viewed as an essential service and that it is clear that the maintenance of an essential service can be a pressing and substantial objective.¹³

He went on to say that the TTC is unique due to the large amount of people that rely on its service and because of this, a hybrid model used in other jurisdictions could not deal with overcrowding or the fact that the TTC does not easily distinguish between categories of employees - suggesting that Ontario met the burden for “minimal impairment.”¹⁴ He believed that arbitration is in fact a meaningful mechanism for resolving bargaining impasses and that the benefit that arises from the continuation of TTC services outweigh the restriction on the overall bargaining process.¹⁵

ONCA makes it clear that they believe that the pre-emptive banning of legal strike action removes the core of what it means to engage in meaningful collective bargaining. In other words, the Court feels that without the right to strike, the essential component of the collective bargaining process is gone.

Moving forward, any Ontario legislation that serves to eliminate the right to strike from various public sector unions will automatically be a prima facie violation of section 2(d) of the Charter - it will be up to the state to prove that the violation is justified.

While the Court briefly touches upon the much-needed distinction between the pre-emptive banning of striking and “back-to-work legislation”,¹⁶ this decision could substantially affect public sector employers, as it makes it more difficult for the government to legislatively substitute alternative dispute resolution methods in place of striking - potentially causing lengthier labour disputes.

It remains to be seen if the Ontario government will choose to appeal this decision to the SCC.

^{1. Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC4.}

^{2. Société des casinos du Québec Inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13.}

^{3. Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407 at para 39. [ATU]}

^{4. ATU at para 40.}

^{5. ATU at para 60.}

^{6. ATU at para 55.}

^{7. ATU at para 62.}

^{8. R v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103.}

^{9. ATU at para 78.}

^{10. ATU at para 73.}

^{11. ATU at para 113.}

^{12. ATU at paras 163 & 170.}

^{13. ATU at para 162.}

^{14. ATU at para 207.}

^{15. ATU at para 220.}

^{16. ATU at para 148.}